THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW OH1CAGO STAR BINDERY 224 S. Syring St., L. A, Tel. MUtual 4434 LAW LIBRARY LOS ANGELES COUNTY EAILWAY ACCIDENT LAW. THE LIABILITY OF RAILWAYS INJURIES TO THE PEBSON. BT CHRISTOPHER STUART PATTERSON, hi OF THE PHILADELPHIA BAE. PHILADELPHIA: T. & J. W. JOHNSON & CO., 535 Chestnut Street. 1886. Copyright, 1886, BY Christopher Stuart Patterson. T P£7?4r 5 MY FRIEND, AND MY PRECEPTOR IN THE LAW, THE HONOURABLE WILLIAM A. PORTER, I GRATEFULLY DEDICATE THIS BOOK. I leave these -words of dedication, as they were written when the prepara- tion of this work was begun, although he, whose name honours thu page, has, since then, in the fullness of years, in the maturity of his powers, and to the sorrow of all who knew him, passed away from earth. CHRISTOPHER STUART PATTERSON. (3) 735709 PREFACE. My object in writing tins book has been that of providing in a compact form a treatise, which should be of practical use to judges and to counsel in the trial of actions against railways for injuries to the person, not only by furnishing references to the Leading, and to the more recent, cases, but also by stating clearly the general principles, whose application must deter- mine cases for which exact precedents are not to be found. I am as conscious, as any of my readers can be, of the many imperfections of my work, but I submit it to the indulgent judgment of my professional brethren in the hope that they will appreciate the labour and the pains that have been devoted to its preparation. C. S. P. Philadelphia, October, 1886. (5 TABLE OF CONTENTS. BOOK I. THE GENERAL NATURE OF THE RAILWAYS LIABILITY. CHAPTER I. NEGLIGENCE. I. Negligence the test of liability. II. The liability as aftected by the quasi-public character of railways. III. Negligence denned. IV. Distinctions in degrees of negligence. V. Proximate and remote cause. VI. The liability for injuries caused by an act of God. VII. The liability for injuries caused by an act of the public enemy. VIII. The liability for injuries caused by inevitable accident. IX. The liability for injuries caused solely by the act of the injured person X. The liability for omissions and acts of commission by agents and servants. XI. The liability for the negligent acts of those who are not agents or servants. XII. The non-performance of a duty imposed by statutes or municipal ordinances. XIII. Ultra vires. CHAPTER H. CONTRIBUTORY NEGLIGENCE. I. Contributory negligence in general. II. The rule in Davies v. Mann. Vili TABLE OF CONTENTS. III. The case of T. & F. S. P. Ky. v. Boudrou. 1\'. Comparative negligence. V. Negligence in avoiding danger or inconvenience. VI. Non-performance of collateral statutory duty as proof of contributoiy negligence. VII. The contributory negligence of lunatics, idiots, and children. VIII. The plaintiff's contributory negligence when suing for injuries to another. IX. The attribution to the passenger of the carrier's contributory negli- gence. X. The attribution of the contributory negligence of one who has been killed to those who sue for damages for his death. XI. The attribution of the contributory negligence of the contracting party to the party on whose behalf the contract was made. XII. The attribution of the contributory negligence of parents and guar- dians to children. XIII. The attribution to the person injured of the contributory negligence of third persons. BOOK II. THE TERSOXS FOR WHOSE ACTS OR OMISSIONS THE RAILWAY IS LIABLE. CHAPTEE . THE GENERAL NATURE OF THE RAILWAY'S RESPONSIBILITY FOR OTHERS. I. The liability as affected by the character of the act, as one of omission or of commission. II. Special and general agency. III. Classification of the persons for whose acts railways are liable. CHAPTER II. THE LIABILITY OF RAILWAYS FOR THE ACTS OF THEIR SERVANTS. I. The general nature of a master's liability for the acts of a servant. II. The relation of master and servant must in fact exist. III. The act must be within the scope of the servant's employment. IV. If the relation exists, and if the act be within the scope of the employ ment, it is not material that the master did not order the particulai act. TABLE OF CONTENTS. IX V. The liability of the railway for its servants' trespasses. VI. The liability of the railway for its servants' wilful acts. CHAPTER III. THE LIABILITY OF RAILWAYS FOR THE ACTS OF INDEPENDENT CON- TRACTORS. I. The general rule of liability for the negligence of contractors. II. The liability for a wrongful act done in pursuance of a contract. Ill The liability for a contractor's non-performance of a duty incumbent on the railway. [V. The railway's obligation to anticipate negligence on the part of its contractor. CHAPTER IV. * THE RAILWAY'S LIABILITY FOR THE ACTS AND OMISSIONS OF OTHER RAIL- WAYS AND OF PERSONS OTHER THAN SERVANTS AND CONTRACTORS. I. The general rule determining the liability. II. The liability of railways for lessees. III. The liability of railways for mortgage trustees in possession. IV. The liability of railways for receivers. V. The liability of railways for means of transportation under the im- mediate control of third parties. VI. The liability of railways for connecting lines. VII. The liability of a railway for the negligence of other railways which under statutory authority use its line. VIII. The liability of a railway for other railways or individuals which by contract use its line. BOOK III. THE PERSONS FOR INJURIES TO WHOM THE RAILWAY IS LIABLE. CHAPTER I. CLASSIFICATION OF THE PERSONS WHO MAY BE INJURED IN THE COCRSE OF RAILWAY OPERATIONS. X TABLE OF CONTENTS. CHAPTEK II. THE GENERAL PRINCIPLE DETERMINING THE LIABILITY OF THE RAIL- WAY TO THE PERSONS INCLUDED IN THE FIRST THREE CATEGORIES. CHAPTEE III. THE LIABILITY OF THE RAILWAY TO THE PERSONS INCLUDED IN THE FIRST CATEGORY, THAT IS, PERSONS WHO ARE RIGHTFULLY UPON HIGHWAYS ADJOINING OR CROSSING THE RAILWAY'S LINE OR PREMISES. I. The liability of the railway to travellers on the highway for traps within its own premises which endanger the safety of the travellers on the highway. II. The liability of the railway to travellers on the highway for its negli- gent construction of, or failure to repair, its buildings, etc. III. The liability of the railway for injuries caused to persons on the high- way by the negligent operation of its line. IV. The liability of the railway for its negligent construction of, or failure to repair, grade crossings. V. The duty of the railway in the operation of its line at grade crossings. VI. Contributory negligence at grade crossings. CHAPTEE IV. THE LIABILITY OF THE RAILWAY TO THE PERSONS INCLUDED IN THE SEC- OND CATEGORY, THAT IS, LICENSEES. I. The liability for injuries resulting from negligence in the construction of, or in the failure to repair, the railway's premises. II. The liability for the negligent operation of the line. III. The effect of notice not to trespass. CHAPTEE V. THE LIABILITY OF THE RAILWAY TO THE PERSONS INCLUDED IN THE THIRD CATEGORY, THAT IS, TRESPASSERS. I. Trespassers on railway premises. n. The turn-table cases. III. Trespassers upon the cars. TV. Trespassers on the line. CHAPTEE VI. THE LIABILITY OF THE RAILWAY TO THE PERSONS INCLUDED IN THE FOURTH CATEGORY, — PASSENGERS, ETC. I. The general principle determining the liability. II. Passengers. TABLE OF CONTENTS. XI III. Persons to whom the railway owes the same measure of duty that it owes to its passengers. IV. The Pennsylvania Act of 4 April, 1868. V. The general duty of the railway to its passengers and to those to whom it owes a like duty. VI. The duty as to the adoption of improved appliances and methods of operation. VII. Railway regulations as affecting passengers. VIII. Station approaches, platforms, and buildings. IX. Boarding and descending from cars. X. The duty of the railway in the operation of its line. XL Contributory negligence of passengers. CHAPTER VII. THE LIABILITY OF THE RAILWAY TO THE PERSONS INCLUDED IN THE FIFTH CATEGORY, THAT IS, THE SERVANTS OF THE RAILWAY. I. The general principle determining the liability of the railway to its servants. II. The duty of the railway in its original construction and subsequent maintenance in repair of its line, rolling stock, and appliances. III. The duty of the railway in its selection and retention of servants. IV. The duty of the railway in its operation of its line. V. The liability of railways to their servants for the negligence of othei servants. VI. The servant's implied undertaking to take upon himself the risks of the service. VII. Minor servants. VIII. The servant's contributory negligence. IX. Statutes affecting the liability of railways to their servants. BOOK IV. THE REMEDY. CHAPTER I. THE FORM OF THE ACTION. I. When the remedy is by action at law and when by suit in equity II. When an action of trespass will lie. III. The distinction between case and assumpsit. IV. The joinder of common law and statutory claims. V. Payment of money into court. Xll TABLE OF CONTENTS. CHAPTER II. THE RIGHT OF ACTION FOR INJURIES CAUSING DEATH. I. The statutory right of action. II. The common-law right. III. Terms of statutes conferring the right of action. CHAPTER III. THE PARTIES TO THE ACTION. I. The plaintiffs. II. The defendants. CHAPTER IV. EVIDENCE IN ACTIONS AGAINST RAILWAYS FOR INJURIES TO THE PERSON I. Admissibility of proof of declarations and admissions by agents and servants of the railway. II. Admissibility for the plaintiff of declarations of the person injured. III. Admissibility for the railway of admissions and declarations of the person injured. IV. Admissibility of evidence as to changes in the construction or mode of operation of the railway made subsequently to the happening of the injury. V. Inspection of the injuries of the person injured. VI. Evidence as to the speed of trains. VII. Evidence as to signals. VIII. Admissibility of life tables in evidence. IX. Evidence as to poverty of person injured, etc. CHAPTER V. THE BURDEN OF PROOF. I. The burden of proving negligence. II. The burden of proving contributory negligence. CHAPTER VI. PRESUMPTIONS. I. The presumption as to negligence. II. The presumption as to contributory negligence. III. Certain minor presumptions. TABLE OF CONTENTS. xiii CHAPTER VII. THE RESPECTIVE PROVINCES OF THE COURT AND THE JURY. I. Negligence and contributory negligence as questions of fact. II. The duty of the judge. CHAPTER VIH. DAMAGES. I. Damages for breaches of contract. H. Damages for torts. III. Exemplary damages. IV. The measure of damages in cases of injuries not causing death. V. The measure of damages in cases of injuries causing death. VI. Statutory limitations of damages. CHAPTER IX. RELEASES. I. The railway's contractual exemption from liability as a carrier II. Releases by the plaintiff or the person injured. TABLE OF CASES CITED. THE REFERENCES ARE TO THE PAGES. Abell v. W. M. R. R, 63 Md. 433, 21 Am. & Eng. R. R. Cas. 503 203, 212, 372 Abend v. T. H. & I. Ry., Ill 111. 202, 17 Am. & Eng. R. R. Cas. 614 365, 368, 374 Abernethy, Schilling v., 17 Week- ly Notes of Cases (Penna.) 364 184 Abert, Knight v., 6 Penna. St. 472 183 Abbett v. C, M. & St. P. Ry., 30 Minn. 482 436, 454 Abbott v. Macfie, 2 H. & C. 744 39 Able, I. C. R. R. v., 59 111. 131 63, 265 Abraham v. Reynolds, 5 H. & N. 143 122, 342, 372 Ackermann, P. R. R. v., 74 Penna. St. 265 158, 171 Ackerson v. E. R. R., 3 Vroom 254 471 A. C. S. & M. Co., Brown v., 3 H. & C. 511 122, 301 Adams, P. R. R. v., 55 Penna. St. 499 490 Illinois R. R. v., 42 111. 474 502 v. H. & St. J. R. R., 74 Mo. 553, 7 Am. & Eng. R. R. Cas. 414 416 v. L. & Y. Ry., L. R. 4 C. P. 739 15, 16, 63, 279 v. L. & N. R. R., Ky. , 21 Am. & Eng. R. R. Cas. 380 265 U. P. Ry. v., 33 Kans. 427, 19 Am. & Eng. R. R. Cas. 376 169, 173 A.dams Express Co. v. Sharpless, 77 Penna. St. 517, 522 449 v. Egbert, 36 Penna. St. 360 460 v. Hay nes, 42 111. 89 5n2 v. Brooks, 42 111. 458 502 Brehine v., 25 Md. 328 502 Agnew, P. & R. R. R. v., 11 Weekly Notes of Cases (Penna.) 394 307 Agricultural Ins. Co., Johnson v., 25 Hun 251 435 A. G. S. Ry., Gothard v., 67 Ala. 114 60,171 fl.Hawk, 72 Ala. 112, 18 Am. & Eng. R. R. Cas. 197 160, 251, 265, 284, 416 Albertson, N. O., J. & G. N. R. R. v., 38 Miss. 242 274, 439 v. K. & D. M. R. R., 48 Iowu 292 76 Albrighton, Honor v., 93 Penna. St. 475 356 Alcorn, Stewart v., 2 Weekly Notes of Cases (Penna.) 401 148 Alden v. N. Y. C. R. R., 26 N. Y. 102 235, 240 Alexander v N. Ry., 33 Up. Can. (Q. B.) 474; 35 Id. 453 502 Alestree, Mitchell v., 1 Ventr. 295 434 Allegheny, Reed v., 79 Penna. St. 300 122 Fritsch v., 91 Penna. St. 226 6 Weir v., 95 Penna. St. 413 471 Allen v. B., C. R. & N. Ry., 57 Iowa 623, 5 Am. & Eng. R. R. Cas. 620 303 v. Playward, 7 Q. B. 960, 53 E. C. L. 122 v. L. & S. W. Rv., L. R. 6 Q. B. 65 110 Lockwood v., 7 Mass. 254 463 v. Willard, 57 Penna. St. 374 122, 434, 441 Hart v., 2 Watts 116 9 i;. New Gas Co., 1 Ex. D. 251 356 P. R. R. v., 53 Penna. St St. 276 473 XV XVI TABLE OF CASES CITED. PAGK Allen, L, P. & C. E. E. v., 31 Ind. 394 501 Schuchardt v., 1 Wall. 368 454 Alleuder v. C, E. I. & P. E. E., 37 Iowa 264 213, 480 v. O, E. I. & P. Ey., 43 Iowa 276 288 Allard, Wynn v., 5 W. & S. 524 47 Ailing, Sherlock v., 44 Ind. 184 233 Alison, Croft v., 4 B. & Aid. 590, 6E. C. L. 112,113 Allison v. C. & N. W. Ey., 42 Iowa 274 29, 292, 421 Alton v. Midland Ey., 19 C. B. N. S. 243, 115 E. C. L. 390, 391, 400, 413 Allyn v. B. & A. E.E., 105 Mass. 77 434 Ambergate Ey., Watson v., 15 _ Jur. 448 137 American S. S. Co. v. Bryan, 83 Penna. St. 448 454 Express Co. v. Second Nat. Bank of Titusville, 69 Penna. St. 394 501 Ames v. U. Ey., 117 Mass. 541 392 Anderson, P. & E. E. E. v., 94 Penna. St. 351, 6 Am. & Eng. E. E. Cas. 407 30, 31, 34, 233, 240, 440 Co. v. Beal, 113 U. S. 227 454 Andrews, P. & C. E. E. v., 39 Md. 329 284, 447 Phelan v., 52 Penna. St. 486 460 Angus, Dalton v., 6 App. Cas. 740 129 Anneslev v. Earl of Anglesea, 17 How. St. Tr. 1139 423 Ansell v. Waterhouse, 6 M. & S. 393 _ 390, 391, 394 Ardesco Oil Co. v. Gilson, 63 Penna.St. 146 122, 305 Arnaud, Eegina v., 9 Q. B. 806, 58 E. C. L. 413 Armour v. Hahn, 111 U. S. 313 356 Arms, M. & St. P. Ey. v., 91 U. S. 495 8, 471 Armstrong, C. E. E. v., 49 Penna. St. 186, 52 Id. 282 56, 60, 221, 227, 372, 491 Stevens v., 2 Seld. 435 102 v. L. & Y. Ey., L. E. 10 Ex. 47 80, 86 v. N. Y. C. & H. E. E. E., 64 N. Y. 635 257 Armsworth v. S. E. Ey., 11 Jur. 758 469, 491 Arnold, Zell v., 2 Pen. & W. 292 390 v. I. C. E. E., 83 111. 273 251, 501, 503 Arnold, C. & L, C. C. E. E. v., 31 Ind. 174 306,366 A. E. E., Campbell v., 53 Ga. 488 60 Artz v. C, E. I. & P. Ey., 34 Iowa 153 170 Asbury, T. W. & W. Ey. v., 84 111. 429 301 Asbcraft, M. & M. E. E. v., 48 Ala. 16, 49 Id. 505 276, 420, 471 Ashmore v. Penna. Trans. Co., 28 N. J. L. 180 502 Asbton, Storey v., L. E. 4 Q. B. 476 102 Tarry v., 1 Q. B. D. 314 127, 148 Asbwortb v. Stanwix, 3 El. & El. 701, 107 E. C. L. 319 Aspell, P. E. E. v., 23 Penna. St. 147 22, 47, 63, 261, 262, 264 Assop v. Yates, 2 H. & N. 768 373 Aston v. Heaven, 2 Esp. 533 35 Atlanta, W. & A. E. E. v., Ga. , 19 Am. & Eng. E. E. Cas. 233 412 Atterton, Mangan v., L. E. 1 Ex. 239 39, 94, 95, 148 A., T. & S. F. E. E., Brown v., 21 Kans. 1, 15 Am. & Eng. E. E. Cas. 271 346 v. Thul, 29 Kans. 466, 10 Am. & Eng. E. E. Cas. 378 424 Smith v., 59 Kans. 738, 4 Am. & Eng. E. E. Cas. 554 91 v. Plunkett, 25 Kans. 188, 2 Am. & Eng. E. E. Cas. 127 346 v. Flinn, 24 Kans. 627, 1 Am. & Eng. E. E. Cas. 240 35, 72 v. Holt, 29 Kans. 149, 11 Am. & Eng. E. E. Cas. 206 303, 337 v. Eetford, 18 Kans. 245 308 v. Ledbetter, 34 Kans. 326, 21 Am. & Eng. K. E. Cas. 555 307 v. Wagner, 33 Kans. 660, 21 Am. & Eng. K. E. Cas. 637 307, 346 v. Moore, 29 Kans. 632, 11 Am. & Eng. E. E. Cas. 243, 31 Kans. 197, 15 Am. & Eng. E. E. Cas. 312 329, 369 A., T. & S. F. E. E. v. McCandliss, 33 Kans. 366, 22 Am. & Eng. K. E. Cas. 296 377 TABLE OF CASES CITED. XV11 PAGE A., T. & S. F. R. R. v. Weber, 33 Kans. 543, 21 Am. & Eng. R. R. Cas. 418 482 Atwood v. Reliance Trans. Co., 9 Watts 87 501 Atkinson v. N . & G. Water-works Co., L. R. 6 Ex. 404 ; 2 Ex. D. 441 42 v. M. & C. R. R., 15 Ohio St. 21 134 Austin v. G. W. Ry., L. R. 2 Q. B. 442 205, 390 M. C. R. R. v., 40 Mich. 247 344 v. M. S. & L. Ry., 10 C. B. 473, 70 E. C. L. 498 A.V. R. R.v. Findlay, 4 Weekly Notes of Cases (Penna.) 438 224 v. McLain, 9 1 Penna. St. 442 389 Baker v., 95 Penna. St. 211, 8 Am. & Eng. R. R. Cas. 141 303, 306 Duffr, 91 Penn. St. 458, 188, 189, 196, 208, 209, 217, 288 Nagle v., 88 Penna. St. 35 70 O'Donnell v., 50 Penna. St. 490 59 Id. 239 211, 240, 286, 288, 305, 313 Avery, C, B. & Q. R. R. v., 109 111. 314, 17 Am. & Eng. R. R. Cas. 649 313, 329 Aveson v. Lord Kinnard, 6 East. 188 417 Ayers, A. & R. A. L. R. R. Co. v., 53 Ga. 12 60 Ayles v. S E. Ry., L. R. 3 Ex. 146 444 A. & C, A. L. R. R. v. Wood- ruff, 63 Ga. 707 308 v. Rav, 70 Ga. 674, 22 Am. & Eng. R. R. Cas. 281 373, 379 A. & C, A., L. Ry., Britton v., 88 N. C. 536, "18 Am. & Eng. R. R. Cas. 391 250, 252, 281 A. & G. W. R. R. v. Dunn, 19 Ohio St. 162 471 A. & N. R, R., Culp v., 17 Kans. 475 151 v. Bailey, 11 Neb. 332, 10 Am. & Eng. R. R. Cas. 742 186 A. & P. R. R., Speed v., 71 Mo. 303, 2 Am. & Eng. R. R. Cas. 77 125, 133, 141, 344 Malier v., 64 Mo. 267 375 Nelson v., 68 Mo. 593 55, 265 A. & R. A. L. R. R. v. Ayres, 53 Ga. 12 60 A. & R. R. R., Presbyterian So- ciety v., 3 Hill 367 4 B A. & St. L. R. R., Mahoney v., 63 Me. 68 133 Hopkins v., 36 N. H. 9 471 A. & S. R. R., Collins v., 12 Barb. 492 2S2 v. McElmurry, 24 Ga. 75 60, 160 A. & W. P. R. R., Vickers v., 64 Ga. 300, 8 Am. & Eng. R. R. Cas. 337 69 Gasway v., 58 Ga. 216 113, 114 v. Webb, 61 Ga. 586 308 v. Wyly, 65 Ga. 120, 8 Am. & Eng. R. R. Cas. 262 60, 159 Stiles v., 65 Ga. 370, 8 Am. & Eng.R.R. Cas. 195 220, 272 A. & F. R. R. v. Waller, 48 Ala. 459 313 Babbitt, Crispin v., 81 N. Y. 516 328 Bachas, I. C. R. R. v., 55 111. 379 166 Bacon, John v., L. R. 5 C. P. 437 136, 241 B. & P. R. R. v., 58 Md. 482, 15 Am. & Eng. R. R. Cas. 4U9 191 Baddely, T. W. & W. R. R. v. 54 111. 19 233, 263, 292 Bailey, A. & N. R. R. v., 11 Neb. 332, 10 Am. & Eng. R. R. Cas. 742 186 Baker v. A. V. R. R., 95 Penna. St. 211, 8 Am. & Eng. R. R. Cas. 141 304, 306 v. Bolton, 1 Camp. 493 397 v. Portland, 58 Me. 199 65 v. W. & A. R. R., 68 Ga. 699 307, 382 Baird v. Pettit, 70 Penna. St. 477 372 Baldwin v. C, R. I. & P. Ry., 50 Iowa 680 309 Baldauf, C. & A. R. R. v., 16 Penna. St. 67 501 Ball, Springett v., 4 F. & F. 472 470 Ballou v. C. & N. W. Ry., 54 Wise. 257, 5 Am. & Eng. R. R. Cas. 480 307, 309, 346 C. P. Mfg. Co. v., 71 111. 418 342 v. Farnum, 9 Allen 47 135 Bangs, L. S. & M. S. Ry. v., 47 Mich. 470, 3 Am. & Eng. R. R. Cas. 426 264 Banin, E. & C. R. R. v., 26 Ind. 70 108 Bank of England, Yarborough v., 16 East 6, 99, 107 of London, Lawson v., 18 C. B. 84, 86 E. C. L. 99, 112 of New South Wales v. Owston, 4 A pp. Cas. 270 110 of Orange v. Brown, 3 Wend. 158 390 XY111 TABLE OF CASES CITED. Banks v. H. St. By., 1 30 Mass. 4S5, 19 Am. «t Eng. R. R. Cas. 139 65, 111 Bant'ora, P. R. R. v., 54 Penna. St. 495 492, 493 Bancroft v. B. & W. R. R., 97 Mass. 275 259 Barbour, Barton v., 104 U. S. 135 4, 136, 385 Barber, R. R. v., 50 Obio St. 541 Bard v. Yohn, 26 Penna. St. 482 102 Barber v. Reese, 60 Miss. 906 29 Barber, M. R. & L. E. R. R. v., 5 Ohio St. 541 301, 307 Barker, P. P. C. Co. v., 4 Colo. 344 2.-53, 292 Barnes v. Ward, 9 C. B. 392, 67 E. C. L. 148 Barnett, P. R. R. v., 59 Penna. 259 151, 153 Barney, Cardot v., 63 N. Y. 281 136 Barden v. B. C. & F. R. R., 121 Mass. 426 282 Barker, L. R. & F. S. Ry. v., 39 Ark. 491, 19 Am. & Eng. R. R. Cas. 195 489 Barry v. St. Louis, 17 Mo. 121 122 Barringer v. D. & H. C. Co., 19 Hun 216 307. 368 Barter v. Wheeler, 49 N. H. 9 ' 134 Barron, I. C. R. R. v., 5 Wall. 90 133, 141,469, 473 Barry v. N. Y. C. & H. R R. R., 92 N. Y. 289, 13 Am. & Eng. R. R. Cas. 615 69, 162, 179 Bartonshill Coal Co. v. McGuire, 3 Macq. H. L. 307 356 v. Reid, 3 Macq. H. L. 282, 4 Jur. N. S. 767 97, 99, 100, 353, 355, 356 Bartlett, Blodgett v., 50 Ga. 353 265, 284 Barton v. Barbour, 104 U. S. 135 4, 136, 385 Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259 106 Bass v. C. & N. W. Ry., 36 Wise. 450, 39 Id. 636, 42 Id. 654 113, 251, 416 Bateman, Moffat v., L. R. 3 P. C. 115 293 Batchelor v. Fortescue, 11 Q. B. D. 474 177 Batson v. Donovan, 4 B. & Aid. 39 498 Batterson v. C. & G. T. Ry., 49 Mich. 184, 8 Am. & Eng. R. R. Cas. 123 301, 304, 305, 346 PAGE Baston v. G. 11. R., GO Ga. 340 190 Baxendale, Hadley v., 9 Ex. 341 460 Riley v., 6 H. & N. 445 342 Baxter v. Roberts, 44 Cal. 187 Bayfield, C. & N. W. R. R. v., 37 Mich. 205 112, 350 Bayley v. M. S. & L. Ry., L. R. 7 C. P. 415, 8 Id. 148 106, 108, 109 Baylis v. Travellers' Ins. Co., 113 U. S. 316 454, 456 Baylor v. D. L. & W. R. R., 40 N. J. L. 23 302, 345 Baughman v. S. & A. R. R., 92 Penna. St. 335 156, 172 Baulec v., N. Y & II. R. R., 59 N. Y. 356 314, 315 Bailey, N. O., J. & G. N. R. R. v., ' 40 Miss. 395 224 Baird v. C, R. I. & P. Ry., 55 Iowa 121, 13 N. W. Rep. 731, 8 Am. & Eng. R. R. Cas. 128, 61 Iowa 359, 12 Am. & Eng. R. R. Cas. 75 305 Bannon v. B. & O. R. R., 24 Md. 108 193 Bartram, C. C. & C. R. R. v., 11 Ohio St. 457 251 B. Canal Co , Dunn v., L. R. 7 Q. B. 244, 8 Id. 42 146 B. C. P. Ry. v. Kemp., 61 Md. 74, 18 Am. & Eng. R. R. Cas. 220 28, 391, 481 B. C. P. R. R. v. McDonnell, 43 Md. 552 42 B. C. R. P., Mulhado v., 30 N. Y. 370 274, 424 Mangan v., 30 N. Y. 445 68 Spooner v., 54 N. Y. 230 290 Cregin v., 83 N. Y. 595 398, 481 Busch v., 29 Hun 112 86 Mangam v., 38 K Y r . 456 91 B. C. R. R., Day v., 76 N. Y. 593 114 Eppendorf v., 69 N. Y. 195 291 B. C. R. T. & N. R. R-, Smith v., 6 Ex. 149 B. C. R. & N. By. v. Dowell, 62 Iowa 629, 15 Am. & Eng. R. R. Cas. 153 434 v. Coates, 62 Iowa 487, 15 Am. & Eng. R. R. Cas. 265 346, 431 Hawes v., 64 Iowa 315, 19 Am. & Eng. R. R. Cas. 220 436, 508 Crowley v.. 65 Iowa 658, 18 Am. & Eng. R. R. Cas. 56 318 Allen v., 57 Iowa 623, 5 Am. & Eng. R. R. Cas. 620 308 TABLE OF CASES CITED. XIX B. C. K. & N. Ry., Bryant v., 66 Iowa 305, 21 Am. & Eng. R. R. Cas. 593 347 Plaver v., 62 Iowa 723, 12 •Am. & Eng. R. R. Cas. 11 -J 283 Raymond?'., 65 Iowa 152, 13 Am. & Eng. R. R. Cas. 6, 18 Id. 217 436 Wells v., 56 Iowa 520, 2 Am. & Eng. R. R. Cas. 243 302, 345 Manning v., 64 Iowa 240, 15 Am. & Eng. R. R. Cas. 171 306 B. C. R. & M. Ry., Verry v., 47 Iowa 549 " 416 Black v., 38 Iowa 515 157 B. C. & N. R. R., Nolan v., 87 N. Y. 63, 3 Am. & Eng. R. R. Cas. 463 290 Dixon v., 100 N. Y. 171 275, 508 Van Horn v., 59 Iowa 33, 7 Am. & Eng. R. R. Cas. 591 426 B. C. & P. R. R., Metz v., 58 N. Y. 61 135, 136 B. C. & F. R. R., Barden v., 121 Mass. 426 282 Beach v. Parmeter, 23 Penna. St. 197 35 Beal v. S. D. Ry., 3 H. & C. 341 8 Anderson Co. v., 113 U. S. 227 454 Beale, P. R. R. v., 73 Penna. St. 504 169, 171 Beard v. C. & P. R. R., 48 Vt. 1 01 254 Woolf v., 8 C. & P., 373, 34 E. C. L. 36 Beaver, I. R. R. v., 41 Ind. 493 205, 292 Beatty v. Gilmore, 16 Penna. St. 463 148 v. C. I. Ry., 58 Iowa 242, 8 Am. & Eng. R. R. Cas. 210 148, 152, 155 Beauchamp v. I. & G. N. Ry., 56 Tex. 239 251 v. S. Mining Co., 50 Mich. 163 29 Beck v. Weeks, 34 Conn. 145 502 Becker, C. & A. R. R. v., 76 111, 25 74 Beckman v. Shause, 5 Rawle 179 501 Beems v. C, R. I. & P- R. R., 58 Iowa 150, 10 Am. & Eng. R. R. Cas. 658 377 Belair v. C. & N. W. R. R., 43 Iowa 662 377 Bell, Dixon v., 5 M, & S. 198, 1 Stark. 287, 2 E. C. L. 39, 95 C.,R. I.&P.R. R. v., 70 111. 1(12 74, 171 v. Midland Ry., 10 C. B. N. S. 287, 100 E. C. L. 471 v. H. & St. J. R. R., 72 Mo. 50,4 Am. & Eng.-R. R. Cas. 580 111, 160, 193, 447 St. L., V. & T. H. R. R. v., 81 111. 76 186 v. I. C. & R. Ry., 53 Ind. 57 135 Beggs, T. W. & W. R. R. v., 85 111. 80 188, 208, 209, 240 Behrens v. K. P. Ry., 5 Col. 400, 8 Am. & Eng. R. R. Cas. 184 374, 375, 436 Beisiegel v. N. Y, C. Ry., 40 N. Y. 9 " 157, 162, 163 Bennett, Brien v., 8 C. & P. 724, 34 E. C. L. 213 v. G. T. Ry., 3 Ont. C. P. D. 446, 13 Am. & Eng. R. R. Cas. 627 160, 161 v. N. J. R. R., 36 K J. Law 225 86 v. L. & N. R. R., 102 U. S. 577, 1 Am. & Eng. R. R. Cas. 71 201, 253 Quarman v., 6 M. & W. 499 102, 103, 120 Benton v. C. R. R., 42 Iowa 192 170 v.C, R. 1. & P. Ry., 55 Iowa 496 109 Bentley, P. Canal Co. v., 66 Penna. St. 32 436, 454 Berg v. C, M. & St. P. Ry., 50 Wise. 419, 2 Am. & Eng. R. R. Cas. 70 344 Bernard, Coggs v., 2 Ld. Raymond 918, 1 Sm. Lead. Cas. 189 207 231 Berringer v. G. E. Ry., 4 C. P. D. 163 393 Berry v. Cooper, 28 Ga. 543 501 v. C. Ry., 40 Iowa 564 470 Besel v. N. Y. C. & H. R. R. R., 70 N. Y. 171, 9 Hun 457 318, 368, 369 Beman v. Rufford, 1 Sim. N. S. 550 133 Bett v. Pratt, 33 Minn. 323, 8 Am. & Eng. Corpor. Cas. 437 42 Benzing v. Steinway, 101 N. Y. 547 329 Bessex v. C. & N. W. Ry., 45 Wise. 477 308 B. H. R. R., Jacques v., 41 Conn. 61 473 XX TABLE OF CASES CITED. B. II. & E. E. E., Goodfellow v., 106 Mass. 46 1 179 School Dist. v., 102 Mass. 552 501 B-, H. & H. B. E., Thompson, v., 5 Ir. C. L. 517 262 Bidwell, McKee v, 74 Penna. St. 218 201, 422, 454 Bigelow v. Beid, 51 Me. 325 65 Bigelow Carpet Co., Bryant v., 131 Mass. 491 394 Bilbee v. L., B. & S. C. By., 18 C.B.N.S.5S4,114E.C L. 165 Billings, Shirley v., 8 Bush. 147 114,233 Billman v. L, C & L. E. B., 76 Ind. 166, 6 Am. & Eng. E. B. Cas. 41 13, 26, 151 Bills, Ingalls v., 9 Mete. 1 233 Bingham v. Bogers, 6 W. & S. 495 501 Bininger, Crater v., 33 N. J. L. 512 460 Binks v. S. Y. Bv., 3 B. & S. 244, 113 E. C.'L. 183 Bird v. Holbrook, 4 Bing. 628, 15 E. C. L. 39, 183 v. G. AV. By., 28 L. J. Exch. 3 439 Birge v. Gardner, 19 Conn. 507 91 Birmingham Water-works Co., Blythu, 11 Ex.781 6,12.146 Birkett v. AV. H. J. By., 4 H. & N. 730 138 Bissell v. N. Y. C. E. B., 25 N. Y. 442 502 v. M.S.&N.I.Ey., 22N.Y. 258 43, 138, 414 Bishop, W. & A. E. E. v., 50 Ga. 465 510 Black v. C. B. E., 10 La. An. 38 233 v. D. & E. Canal Co., 22 N. J. Eq. 130 133 T'., AV. & AV. E. E. v., 88 111. 112 346, 376 v. B., C, E. & M. By., 38 Iowa 515 157 Blackburn, Sarch v., 4 C. & P. 297, 19 E. C. L. 183 Blair v. E. By., 66 N. Y. 313 216, 502 Blake, G. AV. By. v., 7 IL & N. 987 138 v. M. C. E. E., 70 Me. 60 314, 368 v. Midland By., 18 Q. B. 93, 83E.C. L. 486,491,492,493 v. Ferris, 5 N. Y. 58 122 v. Thirst, 2 II. & C. 20 123,127 Blakely, M. E. E. v., 59 Ala. 477 233 Blakemore v. B. & E. Bv., 8 El. & Bl. 1035, 92 E. C. L. 224 Blamires v. L. & Y. By., L. E. 8 Ex. 283 41, 276 Blessing v. St. L., K. C. & N. By., 77 Mo. 410, 15 Am. & Eng. E. E. Cas. 298 366 Blocher, B. & O. E. E. v., 27 Md. 277 114, 471 Blodgett v. Bartlett, 50 Ga. 353 265, 284 Bluhm, P. P. C. Co. v., 109 111. 20, 18 Am. & Eng. E. E. Cas. 87 306, 480 Blumenthal v. Smith, 38 Vt. 402 136 Blyth v. Birmingham Water- works Co., 11 Ex.781 6,12,146 v. Topham, Cro. Jac. 158 183 B. L. & C. J. By., Eoe v., 7 Ex. 36 107, 110, 112, 113 Winch «., 5 De G. & S. 562, 16 Jur. 1035 133 Boadle, Byrne v., 2 H. & C. 722 148, 440 Bock, P. E. E. v., 93 Penna. St. 427, 6 Am. & Eng. E. E. Cas. 20 76, 168, 395 Boland v. Mo. E. E., 36 Mo. 484 54,69 Bolch v. Smith, 7 H. & N. 736 176 Boldt v. N. Y. C. E. E., 18 N. Y. 432 356 375 Bonifieldfc. & A. E. E. v., 104 111. 223, 8 Am. & Eng. E. E. Cas. 443 264, 364 Books v. Borough of Danville, 95 Penna. St. 158 407 P. E. E. v., 57 Penna. St. 345 209, 445, 468, 471, 473 Booth v. B. & A. E. E., 73 N. Y. 38 _ 317, 329, 330, 337 Borries v. Hutchinson, 18 C. B. N. S. 445,114 E.G. L. 460 Borough of Danville, Books v., 95 Penna. St. 158 407 of Susquehanna Depot v. Sim- mons, 17 Weekly Notes of Cases (Penna.) 362 122 Borst v. L. S. & M. S. Ey., 66 N. Y. 639 151, 155 Boston, Bowditch v., 101 U. S. 16 454 Gas-light Co., Holly v., 8 Gray 123 91 Boswell v. Laird, 8 Cal. 469 122 Bosworth v. Swansev, 10 Mete. 363 65 Bottsford v. M. C. Br., 33 Mich. 256 303 Bothwell, Chapman v., 4 Jur. N. S. 1181 489 TABLE OF CASES CITED. XXI Boudrou, 13th & 15th Sts.P. Ev. Co. v., 92 Penna. St. 480, 8 Weekly Notes of Cases (Penna.) 244 47,48,57,290,495 Boulter v. Webster, 13 W. K. 2*9 489, 493 Boulton, White v., Peake 113 232 Bowditch v. Boston, 101 U. S. 16 454 Bowen v. D. C. S. Ey., 54 Mich. 496, 19 Am. & Eng. B. E. Cas. 131 150 v. N. Y. C. E. E., 18 N. Y. 408 246 J., M. & I. E. E. v., 49 Ind. 154 76 Bower v. Peate, 1 Q. B. D. 326 97, 128 v. G, M. & St. P. By., 61 Wise. 457, 19 Am. & Eng. E. E. Cas. 301 169, 420 Boyce, Jones v., 1 Stark. 493, 2 E. C. L. 14,62 Boyd, G. E. & I. E. E. v., 65 Ind. 526 235, 240 Boyer, Hughes v., 9 Watts 556 102, 454 P. & E. E. E. v., 97 Penna. St. 91, 2 Am. & Eng. E. E. Cas 172 '42,82,86,164,168,443,495 Bolton, Mel. E. E. v., 43 Ohio St. 224, 21 Am. & Eng. E. E. Cas. 501 212, 370 Baker v., 1 Camp. 493 397 Bowler, L. & N. E. E. v., 9 Heisk. (Tenn.) 866 323, 370 Bonham, S. C. Co. v., 9 W. & S. 27 134 Bonnell v. D., L. & W. E. E., 39 N. J. L. 189 169 Boring, M. & W. P. E. E. v., 51 Ga. 582 134 Boorman, Brown v., 11 CI. & Fin. 44 391 Boss v. P. & W. E. E.. E. I. , 21 Am. & Eng. E. E. Cas. 364 264 Boylan, Penna. Co. v., 104 111. 595, 10 Am. & Eng. E. E. Cas. 734 156 Bohan, M., L. S. & W. Ev., 58 Wise. 30, 15 Am. & Eng. E. E. Cas. 374; 61 Wise. 391, 19 Am. & Eng. E. E. Cas. 276 167 428 B., P. & C Ey. v. McDonald, 68 Inch 316 280 v. Pixley, 61 Ind. 22 467, 470 B., P. & W. E. E. v. O'llara, 12 Weekly Notes of Cases (Penna.) 473 207, 208, 501 Bradshaw v. L. & Y. Ey., L. E. 10 C. P. 189 401 Brahbitts v. C. & N. W. Ey., 38 Wise. 289 356 v. B. W. Ey., 38 Mo. 289 382 Braddick, Fletcher v., 5 Bos. & Pul. 182 103 Bradley v. B. & M. E. E., 2 Cush. 539 162 Braid, G. W. Ey. v., 1 Moo. P. C. N.S. 101, 9 Jur. N. S. 339 31, 32, 240, 440 Bradburn v. G. W. Ey., L. E. 10 Ex. 1 474, 494 Bramall v. Lees, 29 L. T. 82 486, 489 Brame, Mob. L. Ins. Co. v., 95 U. S. 754 399 Branagan, T., W. & W. Ev. v., 75 Ind. 490, 5 Am. & Eng. E. E. Cas. 630 434, 436 Brannon, P., W. & B. E. E. v., 17 Weekly Notes of Cases (Penna.) 227 13, 26, 107 Brann v. O, E. I. & P. Ey., 53 Iowa 595 303, 330, 369 Brassell v. N. Y. C. & B. E. E. E., 84 N. Y. 241, 3 Am. & Eng. E. E. Cas. 380 254, 257 Bregy, B. & O. E. E. v., 32 Md. 333 502 Brehme v. Adams Ex. Co., 25 Md. 328 502 Bremner v. Williams, 1 C. & P. 414, 11 E. C. L. 232 Brett, Wilson v., 11 M. & W. 115 8 Bremen, Gleason v., 50 Me. 222 436 Bresmer, G. & C. St. Ev. v., 97 Penna. St. 103 349, 373 Brickman v. S. C. E. E., 8 S. C. 173 305 Brien v. Bennett, 8 C. & P. 724, 34 E. C. L. 213 Brick v. E., N. Y. & P. E. E., 98 N. Y. 212, 21 Am. & Eng. E.E.Cas.605 323,328,347.368 Bridge v. G. J. Ey., 3 M. & W. 244 45, 47, 51, 78, 86 Bridges v. N. L. Ev., L. E. 6 Q. B. 371,7 ILL. 232 6, 261, 262, 266, 268, 450, 454 Briggs v. Taylor, 28 Vt. 180 8, 446 v. Oliver, 4 FL & C. 408 200 Brigham, P., F. W. & C. Ey. v., 29 Ohio St. 374 31, 32, 177 Brignoli v. C. & G. E. E. E., 4 Daly 182 240, 275, 439 Britton v. A. & C. A. L. Ey., 88 N. C. 536, 18 Am & Eng. E. E. Cas. 391 250, 252, 281 v. G. AV. Cotton Co., L. E. 7 Ex. 130 41, 304 XXII TABLE OF CASES CITED. Brinson, R. E. v., 70 Ga. 207, 64 Id. 475, 19 Am. & Eng. R.R.Cas.42 190,192,197,443 Brocksmidt, Owen v., 54 Mo. 285 493 Britz, St. L. & S. E. Ry. v., 72 111. 261 342, 368 Brooks, T., W. & W. R. R. v, 81 111. 245, 292 188, 208, 209 v. Somervillc, 106 Mass. 271 454 v. B. & M. R. R., 135 Mass. 21, 16 Am. & Eng. R. R. ('as. 345 262,263,266 Adams Ex. Co. ?-., 42 111. 458 502 Brooke, Mayor of Colchester v., 7 Q. B. 339, 377, 53 E. C. L. 51, 54 Brooklyn, Lehman v., 29 Barb. 234 441 Broom, E. C. Ry. v., 6 Ex. 314 99, 110, 112, 113 Brokaw v. N. J. R. R., 3 Vroom 328 108 B. R R., Burns v., 50 Mo. 1 39 290 Brophv, G. P. Ry. v., 105 Penna. St. 38, 16 Am. & Eng. R. R. Cas. 361 285 Brotherton t>.Wood, 3 Brod. & B. 54, 7 E. C. L. 390, 394 Brown, Caldwell v., 53 Penna. St. 453 323, 356, 493 v. A., T. & S. F. R. R , 31 Kans. 1, 15 Am. & Eng. R. R. Cas. 271 346 v. A. C. S. & M. Co., 3 H. & C 511 122,301 v. C, M. & St. P. Ry„ 54 Wise 342, 3 Am. & Eng. R. R. Cas. 444 25, 27, 292, 407 v. C. & B. St. Ry., 49 Mich. 153, 8 Am. & Eng. R. R. Cas. 385 112, 434 v. French, 14 Weekly Notes of Cases (Penna.) 412 112 v. N. Y. C. R. R., 34 N. Y. 404, 32 Id. 600 166,246,275 O. & R. V. R. It. v., 14 Neb. 170, 1 1 Am. & Eng. R. R. Cas. 501 32 Sills v., 9 C. & P. 601, 38 E. C. L. 47, 48 v. E. & N. A. R. R., 58 Me. 384 91 v. B. &S. L. R. R., 22N.Y. 191 42 Bank of Orange v,, 3 Wend. 158 390 v. M. & St. L. Ry., 31 Minn. 553, 15 Am. & Eng. R. R. Cas. 333 366 v. M. R R., 64 Mo. 536 188 Brown v. W. & St. P. R. R., 27 Minn. 162 368 W.,A.&G.R.R.v.,17Wall. 445 132, 133 v. II. & St. J. R. R., 50 Mo. 461 196 v. M., K. & T. R. R., 64 Mo. 536 208 v. G. W. Ry., 40 Up. Can. Q. B. 333, 2 Ont. Ap. Cas. 64, 3 Can. S. C. 159 221 v. Boorman, 11 01. & Fin. 44 391 Brownell v. Flagler, 5 Hill 282 50 Bruce, P. & L. E. R. R. v., 102 Penna. St. 23 4 Bruner, Johnson v., 61 Penna. St. 58 300 Bryan, American S. S. Co. v., 83 Penna. St. 448 454 v. N. Y. C. R. R., 31 Barb. 335 86 Thorogood v., 8 C. B. 115, 65 E. C L. 78, 85, 86 Bryant v. Eigelow Carpet Co., 131 Mass. 491 394 v. B., C, R. & N. Ry., 66 Iowa 305, 21 Am. & Eng. R. R. Cas. 593 347 v. Rich, 106 Mass. 180, 202 114 v. C, R. I. & P. Ry., 6ii Iowa 464, 16 Am. & Eng. R. R. Cas. 335 114 Brydon v. Stewart, 2 Macq. H. L. 30 314 Broue,hton v. M. G. W. Ry., 1 Ir. C. L. 169 146 Brownell v. P. R. R., 47 Mo. 240 417 B. Ry., Carey v., 1 Cush. 475 397 Brand, H. Rv. v., L. R. 1 Q. B. 130, 2 "id. 223, L. R. 4 H. L. 171 146 Bracken v. G. H. & S. A. Rv., 57 Tex 71. 14 Am. & Eng. R. R. Cas. 691 168 Bresnahan v. M. C. Rv., 49 Mich. 410, 8 Am. &'Eng. R. R. Cas. 147 190 B. S. R. R v. Harris, 67 Ala. 6 473 B.. S., O. & B. R. R. v. Rainbolt, 99 Ind. 551, 21 Am. & Eng. R. R. Cas. 466 240, 440 Bucher, Higgins v., Yelv. S9 397 v. Fitchburg R. R., 131 Mass. 156, 6 Am. & Eng. R. R. Cas. 212 65 v. N. Y. C. & H. R. R. R-, 98 N. Y. 128, 21 Am. & Eng. R. R. Cas. 361 263, '464, 287 TABLE OF CASES CITED. XX111 Buck, T. H. &. I. K. K. ?•., 96 Ind. 346, 18 Am. & Eng. R. R. Cas. 234 28, 266 Buckingham, Lamphear v., 33 Conn. 237 134 Buckner, I. C. R. R. v., 28 111. 299 75 Budd, DufF v., 3 Brod. & B. 177, 7 E. C. L. 7 Bull v. M. & M. Ry., 67 Ma. 206 367 Bueneinann v. St. P., M. A: M. Ry., 32 Minn 390. 18 Am. & Eng. R. R. (as. 153 254 Buel v. N. Y. C. R. R., 31 N. Y. 314 15, 62 Buesching ». Gas-light Co., 73 Mo. 229 436, 444 Buffett v. T. & B. R. R., 40 N. Y. 168 136. 214, 242 Bunting v. C. P. R. R., 14 Nev. 351, 6 Am. & Eng. R. R. Cas. 282 427 Burbank, McLean v., 11 Minn. 277 139 Burdge, I. B. & W. Rv. v., 94 Ind. 46, 18 Am. &"Eng. R. R. Cas 192 109 Burke, N. O., St. L. & C. R.R. v., 53 Miss. 200 281 v. S. E. Ry., 5 C. P. D. 1 500 Wanamaker v., 17 "Weekly .Notes of Cases (Penna.) 225 373 v. Witherbee, 98 N. Y. 562 301 Burns v. Poulson, L. R. 8 C. P. 563 102 v. C. & Y. Ry., 13 C. L. (N. S.) 543 237 1 B. R. R., 50 Mo. 139 290 v. B. & L. R. R., 101 Mass. 50 224 Burnett, Owen v., 4 Tvr. 133 7 Burgess v. G. W. Rv., 6 C. B. N. S. 923, 95 E.*C. L. 253 Burling v. I. C. R. R., 85 111. 18 318 377 Burrows v. Erie Ry., 63 N.Y.' 556 103, 264 v. March. G. & C. Co. L. R. 5 Ex. 66, 7 Id. 96 95 Burnett v. B. & M. R. R,, 16 Neb. 332, 19 Am. & Eng. R.R. Cas. 25 54, 193 Bush v. Johnston, 23 Penna. St. 209 148 v. Steinman, 1 Bos. & Pul. 404 119 Burton v. Pinkerton, L. R. 2 Ex. 340 461 v. Price, 57 Cal. 272 509 Burton v. G. H. & S. A. R. R.. 61 Tex. 526, 21 Am. & Eng. R. R. Cas. 218 123 v. P., W. & B. R. R., 4 Har- rington 252 152 v. W. J. Ferry Co., 114 U. S. 471 282 Busch v. B. C. R. R., 29 Hun 112 86 Bussian v. M., L. S. & W. Ry., 50 "Wise. 325, 10 Am. & Eng. R. R. Cas. 716 152, 508 Bussy v. Donaldson, 4 Dall. 206 468 Butler v. M. & St. P. Rv., 28 Wise. 487 166, 173 P. R.R.r., 57 Penna. St. 336 207, 468, 491, 501 Cooper v., 103 Penna. St. 412, 14 Weekly Notes of Cases (Penna) 278 37tf, 374 Butterfield v. Forrester, 11 East 60 45, 47, 51 v. W. R R., 10 Allen 532 168 Button v. H. R. R. R., 18 N. Y. 248 54, 436 C. & N. W. Ry. v., 6S 111. 409 411 Buxton v. N. E. Ry., L. R. 3 Q. B. 549 138 Byrne v. Boadle, 2 H. & C. 722 148, 440 N. Y. C. & H. R. R. R., 94 N.Y. 12 160,161 v. N.Y. C.&H. R. R.R., 83 N. Y. 620 69 B. & A. R. R., Allyn v., 105 Mass. 77 434 Carpenter v., 24 Hun. 104, 97 N. Y. 494, 21 Am & Eng. R. R. Cas. 331 102, 255 Corcoran v., 133 Mass. 507 299, 434, 442, 444 Booth v., 73 N. Y. 38 317,329,330,337 Forsvth v., 103 Mass. 510 2-3;;, 254. 259 Mackint',, 135 Mass. 201, 15 Am. & Eng. R. R. Cas. 196 309, 311, 335, 367 Murdock v., 13." Mass. 15, 6 Am. A; Eng. R. R. Cas. 406 395, 467 Peeples v.. 60 Ga. 281 114 Roser., 58 N. Y. 217 316 Sweeney v., 128 Mass. 5. 1 Am. & Eng. R. R. Cas. 138 180 Murphv v., 88 N. \ . 146, 8 Am. & Eng. R.R. Cas. 510 306, 369 Sprong v., 58 N. Y. 56 374 Flike v., 53 N. Y. 549 317, 322, 330 XXIV TABLE OF CASES CITED. B. & A. E. E., Elkins v., 115 Mass. 190 C9 Dickie v., 131 Mass. 516, 8 Am. & Eng. R. E. Cas. 203 149 Tinney v., 62 Barb. 218 299 Murphy v., 133 Mass. 121 179 Clark «., 128 Mass. 1, 1 Am. & Eng. R. E. Cas. 134 375 Eamsden v., 104 Mass. 117 109, 110 Wheelwright v., 135 Mass. 225, 16 Am. & Eng. E. E. Cas. 315 260 Wheelock v., 105 Mass. 203 257 B. & B. Ey. v. Keys, 9 H. L. C. 555 209 B. & C. E. E., Stewart v., 90 N. Y. 5S8, 12 Am. & Eng. E. E. Cas. 127 114, 117 B. & E. Ey., Blakemore v., 8 El. & Bl. 1035, 92 E. C. L. 224 v. Collins, 7 II. L. 194 137 Praeger v., 24 L. T. N. S. 105 266, 267 Tebbutt v., L. E. 6 Q. B. 73 217, 256 B. & H. S. E. E., Dietrich v., 58 Md.347,llAm. & Eng. E. E. Cas. 115 291,416,454 B. & I. E. E. v. Snyder, 24 Ohio St. 670 76 v. Snyder, 18 Ohio St. 399 91 B. & J. E. Co., Sweeny v., 101 N. Y. 520, 524 343 B. & L. E. E., O'Connor v., 135 Mass. 352, 15 Am & Eng. E.B.Cas.362 69, 70, 166, 180 Burns v., 101 Mass. 50 224 Chaffee v., 104 Mass. 108 257 Gahaganw., 1 Allen 187 283 Commonwealth v., 134 Mass. 211 405 Eaton v., 11 Allen 500 86, 95, 139 Hickey v., 14 Allen 429 265, 284 Treats, 131 Mass. 371, 3 Am. & Eng. E. E. Cas. 423 281 Cooke v., 133 Mass. 185 149 Lowell v., 23 Pick. 24 127 Favor v., 114 Mass. 350 152 Lovejoy v., 125 Mass. 79 308 Yeatou v., 135 Mass. 418, 15 Am. & Eng. E. E. Cas. 253 346 Woburn v., 109 Mass. 283 412 B. & M. E. E., Mayo v., 104 Mass. 137 436 Gordon v., 58 N. H. 396 421 Beaver v., 14 Cray 466 211, 368 Miller v., 1 28 Mass. 8, 1 Am. & Eng. P. E. Cas. 141 366 Smith v., 120 Mass. 490 65 E. & M. E. E., Hoben v., 20 Iowa 562 374 Quimby v., 69 Me. 340 253 Eathburn v., 16 Neb. 441, 19 Am. & Eng. E. E. Cas. 137 150 Walker v., 128 Mass. 8, 1 Am. & Eng. E. E. Cas. 141 306, 366 Bradley v., 2 Cush. 539 162 Brooks v., 135 Mass. 21, 16 Am. & Eng. E. E. Cas. 345 262, 263, 266 Burnett v., 16 Neb. 332, 19 Am.&Eng.E.R.Cas.25 54,193 Johnson v., 125 Mass. 75 214, 283 Commonwealth v., 129 Mass. 500, 1 Am. & Eng. E. E. Cas. 457 214 Wright v., 129 Mass. 440, 2 Am. & Eng. E. E. Cas. 121 169, 190 v. Eose, 11 Neb. 177, 1 Am. & Eng. E. E. Cas. 253 250, 251 McKimble v., 139 Mass. 542, 21 Am. & Eng. E. E. Cas. 213 405 B. & N. E. E., Sheridan v., 36 N. Y. 39 290, 292 B. & N. C. Ey., Conway v., 9 Irish C. L. 498 368 B. & N. W. Ey., McAllister v., 64 Iowa 395, 19 Am. & Eng. E. E. Cas. 108 191, 196 v. Blocher, 27 Md. 277 114, 471 v. Depew,40OhioSt.l21, 12 Am. & Eng. E. E. Cas. 64 191, 224 Bannon v., 24 Md. 108 193 Lewis v., 38 Md. 588 283 v. State, 33 Md. 542 54, 212, 372,376 v. State, 63 Md. 135, 21 Am. & Eng. E. E. Cas. 202 287, 440, 490, 493 Washington v., 17 W. Va. 190, 10 Am. & Eng. E. E. Cas. 749 6 v. State, 29 Md. 252, Id. 420 246 State v., 24 Md. 84 36, 54, 158, 233, 493 v. School District, 96 Penna. 65, 2 Am. & Eng. E. E. Cas. 166 30, 31, 34 v. State, 60 Md. 449, 12 Am. & Eng. E. E. Cas. 149 257, 283 v. Schwindling, 12 Weekly Notes of Cases 349, 101 Penna. St. 258 177, 190 v. State, 62 Md. 479, 19 Am. & Eng. E. E. Cas. 83 197, 416, 434 TABLE OF CASES CITED. XXV B. &N.W. Ry. v. Bregy, 32 Md. 333 ' 502 Kean v., 61 Md. 154, 19 Am. & Eng. R. R. Cas. 321 54, 74, 174 Mastin v., 14 W. Va. 180 205 Fowler v., 18 W. Va. 579, 8 Am. & Eng. R. R. Cas. 480 180 Randall v., 109 U, S. 478, 15 Am. & Eng. R. R. Cas. 243 160, 246, 306, 344, 355, 356, 367 454 r.Hobbs, Md. , 19 Am. & Eng. R. R. Cas. 337 169 v. Strieker, 51 Md. 47 302, 345 v. Wightman, 29 Grat. 431 491 Wonder v., 32 Md. 411 301 v. Whittington, 30 Grat. 805 374, 378 v. Worthington, 21 Md. 275 233, 240 v. State, 41 Md. 268 318, 373, 491 v. Noell, 32 Grat. 394 493 B. & P. R. R., District of Colum- bia v. 4 Am. & Eng. R. R. Cas. 179 412 v. Jones, 95 U. S. 439 6, 47, 283, 374 Pabst v., 2 McArthur 42 262, 470 B. & R. B. R. R., Smedis v., 88 N. Y., 13 8 Am. & Eng. R. R. Cas. 445 157, 167, 175 B. & S. A. R. R., Putnam v., 55 N. Y. 108 280 B. & S. C. Ry., Fordbam v., L. R. 3 C. P. 368, 4 Id. 619 277 B. & S. Gaslight Co., Smith v., 1 Ad. & El. 526, 28 E. C. L. 99 112 B. & S. L. R. R., Brown v., 22 N.' Y. 191 42 B. & W. R. R., Bancroft v., 97 Mass. 275 259 Caswell v., 98 Mass. 194 15, 62, 240 Farwell v., 4 Mete. 49, 1 Redf. Am. Ry. Cas. 395 350,351,356, 359,363,366 King »., 9 Gush. 112 301,338,366 O'Brien v., 15 Gray 20 215 Schopman v., 9 Cush. 24 217, 233 B. & O. C. R. R. v. Rowan, 104 Ind. 88, 23 Am. & Eng.R. R. Cas. 390 302, 345 Cagney v. II. & St. J. R. R., 69 ' Mo. 416 301 Caldwell v. Brown, 53 Penna. St. 453 323, 356, 493 v. N.J. S. N. Co., 47 N. Y. 290 235 P. A. & M. Ry. v., 74 Penna. St. 421 95, 209 PAGK 88 65 280 390 60 377 473 396 87 134 177 Cannon, Rowland v., 35 Ga. 105 Wallace v., 38 Ga. 199 v. M. G. W. Ry., 6 Irish C. L. 199 Campbell, Spencer v., 9 W. & S. 32 v. A. R. R., 53 Ga. 4o8 v. C, R. I. & P. Rf., 45 Iowa 76 Nebraska City v., 2 Black. (S. C.) 590 Cantrell, St. L., I. M. & S. R. R. v., 37 Ark. 519, 8 Am. & Eng. R. K. Cas. 198 254, 264, 286, 287, 468, 474 Cardot v. Barney, 63 N. Y. 281 136 Carden, Schreger v., 11 C. B. 851 Carlisle v. Sheldon, 38 Vt. 440 Carpenter v. B. & A. R. R., 97 N. Y. 494, 21 Am. & Eng. R. R. Cas. 331 102, 255 v. Mining Co., 65 N. Y. 43 Carroll, Maener v., 46 Md. 212 v. S. I. R. R., 58 N. Y. 126 65, 235 D. & H. C. Co. v., 89 Penna. St. 374 320, 321, 323 N. & C. R. R. v., 6 Heisk. (Tenn.) 347 60, 370 v. P. R. R., 12 Weekly Notes of Cases (Penna.) 348 169, 172, 260 v. M. V. R. R., 13 Minn. 30 372 Carp ue v. L. & B. Ry., 5 Q. B. 747, 48 E. C. L. 274, 439 Carson v. Godley, 26 Penna. St. Ill Carter v. C. & G. R. R., 19 Shand (S. C) 20, 15 Am. & Eng. R. R. Cas. 414 191, 454 v. L., N. A. & C. R. R , 98 Ind. 522, 22 Am. & Eng. R. R. Cas. 360 109, 189 Cartwright v. C & G. T. Ry., 52 Mich. 606, 16 Am. & Eng. R. R. Cas. 321 Caruth, M. C. R. R. v., 51 Miss. 77 Case, L. C. & L. R. R. v., 9 Bush 728 86, 486 v. C, R. I. & P. R., 64 Iowa 762, 19 Am. & Eng. R. R. Cas. 142 Casey v. N. Y. C. & II. R. R. R., 78 N. Y. 518 Caswell v. Worth, 5 E1.& Bl. 849, 85 E. C. L. v. B. & W. R. R., 98 Mass. 194 15, 62, 240 200 266 469 442 416 36 XXVI TABLE OF CASES CITED. Catlin v. Hills, 8 C. B. 123, 65 E. C. L. 80, 86 Cauley v. P., C & St. L. E. B., 95 ' Penna. St. 398, 98 Id. 498 76, 199,115, 188, 189, 190, 196, 446 Caulkins, Erie v., 85 Penna. St. 247 122, 125 Capper v. L. E. & St. L. B. B., 103 Ind. 305, 21 Am. & Eng. E. B. Cas. 525 367, 381 Cassidy v. M C. B. E , 76 Me. 488, 17 Am. & Eng. E. B. Cas. 519 366, 381 Carleton v. F. I. Co., 99 Mass. 216 201 Cameron, Fries v., 4 Bicliardson 228 201 Cavens, L. C. & L. E. B. v., 9 Bush (Ky.) 559 323 Carlin v. C, B. I. & P. Ey., 37 Iowa 316 170 Campan v. M. S. E. E., 35 Mich. 468 190 Carey v. B. By., 1 Cush. 475 397 C, B. & Q. B. B. v. George, 19 111. 510 275, 439 v. Hazzaid, 26 111. 373 288, 292 v.Iowa, 94 U.S. 161 4, 5 Dougherty v., 86 111. 467 265, 427 Lalor v., 52 111. 401 350 Morris v., 45 Iowa 29 191,196, 469 v. Sykes, 96 111. 162, 2 Am. & Eng. E. E. Cas. 254 287, 238 v. Warner, 108 111. 538, 18 Am. & Eng. E. B. Cas. 100 307, 378, 445 v. Van Patten, 74 111. 91 60 v. Dickson, 67 111. 122 411 v. Dickson, 63 111. 151, 7 Am. By. Bep. 45 114 v. Gregory, 58 111. 272 308 v. Johnson, 103 111. 512, 8 Am. & Eng. B. B. Cas. 225 425, 432 v. Stumpfs, 55 111. 367 427 .v. Stumps, 69 111. 409 73 Sevmour v., 3 Biss. 43 139, 254 Gould v., 66 Iowa 590, 22 Am. & Eng. B. B. Cas. 289 308 Hazzard v., 1 Biss. 503 288 v. Avery, 109 111. 314, 17 Am. & Eng. B. E. Cas. 649 313, 329 Clark v., 92 111. 43 342 v. Dickson, 88 111. 431 151, 427 C, B. & Q. E. E. v. Dunn, 52 111. 45 J 151 v. Dougherty, 110111.521,19 Am. & Eng. E. E. Cas. 292 162 v. Dewey, 26 111. 255 260, 283 v. Lee, 60 111. 501 420 C. B. U. P. By., McQueen v., 30 Kans. 689, 15 Am. & Eng. E. B. Cas. 226 211, 307 v. Henigh, 23 Kans. 347 73 C. B. E. E. v. Phillippi, 20 Kans. 12 160 C, C, C. & I. E. E., Lary v., 78 Ind. 323, 3 Am. & Eng. E. E. Cas 498 177, 190 v. Newell, 75 Ind. 542, 8 Am. & Eng. E. E. Cas. 377 240, 275, 276, 439 v. Walrath, 38 Ohio St. 461, 8 Am. & Eng. B. E. Cas. 371 136, 240, 243, 276, 440 Kerwhacker v., 3 Ohio St. 172 54,65 C. C. E. E. v. Ogden, 3 Colo. 499 329, 379 v. Martin, 7 Colo. , 17 Am. & Eng. B. E. Cas. 592 367 v. Holmes, 5 Colo. 197, 8 Am. &Eng. E. B. Cas. 410 54 Ward v., 19 Shand (S. C.) 521, 16 Am & Eng. E. B. Cas. 356 274 Hinckley v., 120 Mass. 262, 436 v. McMahon, 103 111. 485, 8 Am. & Eng. B. B. Cas. 68 111,423 v. Mumford, 97 111. 560, 3 Am.& Eng. B. B. Cas. 312 274, 291 Summers v., 34 La. An. 139 285 Fitts v., 59 Wise. 325, 15 Am. & Eng. B. B. Cas. 462 454 C. C. S. N. Co., Yeomans v., 44 Cal. 71 216 C, C. & C. E. E. v. Terry, 8 Ohio St. 570 75, 86 v. Mara, 26 Ohio St. 185 418 Bartram v., 11 Ohio St. 457 251 v. Keary, 3 Ohio St. 254 324, 326, 370 O, C. & I. C. By. v. Manson, 30 Ohio St. 451 287 v. Powell, 40 Ind. 37 109,215,292 v. Troesch, 68 111. 545 307, 434 C, D. & M. By., Walter v., 39 Iowa 33 69 Chaffee v. E. & L. B. B., 104 Mass. 108 173, 257 Chamberlain v. Chandler, 3 Ma- son 242 114 TABLE OF CASES CITED. XXV11 Chamberlain v. M. & M. E. E., 11 Wise. 238 216, 355, 369 Chambers. I. C. E. E. v., 71 111. 519 265 Clark v., 3 Q. B. D. 327 39, 95, 148, 187 Chandler, Chamberlain v., 3 Ma- son 242 114 Chanslor, Lemon v., 6S Mo. 340 208, 235 Chaplin, Greenland v., 5 Ex. 243 12,82 Tucker v., 2 C. & K. N. P. 730, 61 E. C. L. 87 Chapman v. Bothwell, 4 Jur. N. S. 1181 489 v. E. Ev., 55 N. Y. 579 314 v. N. H". E.E., 19N.Y. 341 86 v. Bothwell, E. Bl. & E. 168, 96 E. C. L. 200 Charles v. Taylor, 3 C. P. D. 492 356 Chase v. M. C. E. E., 77 Me. 62, 19 Am. & Eng. E. E. Cas. 356 175, 444 Chenewith, L. & B. E. E. v., 52 Penna. St. 382 201,252,501 Chicago v. Major, 18 111. 349 489 v. Bobbins, 2 Black 418 127 Bobbins v., 4 Wall. 657 127,412 Scammon v., 25 111. 424 122 v. Schollen, 75 111. 468 482, 489 Child v. Hearn, L. E. 9 Ex. 176 81,86 Chilton v. L. & C. By., 16 M. & W. 212 99, 110 Christie v. Griggs, 2 Camp. 79 232 439 Churchill v. Holt, 127 Mass. 165' 394 C, H. & I. E. E. v. Eaton, 94 Ind. 474, 18 Am. & Eng. E. K. Cas. 254 25, 467 Chant v. S. E. Ev., Weekly Notes (Eng.) for 1866, p. 134 490 Charlton, t. & P. Ey. v., 60 Tex. 397, 15 Am. & Eng. E. E. Cas. 350 309, 338, 342 Chickering, Marsh v., 101 N. Y. 396, 400 301, 373 C. H. & II. Ev. v. Moore, 59 Tex. 64, 10 Am. & Eng. E. E. Cas 745 91 City of Dublin Steam Packet Co., Fenton v., 8 A. & E. 835, 35 E. C. L. 103 C. I. Co. v. Stead, 95 U. S. 161 157, 158, 166, 169 C. I. Ey., Beatty v., 58 Iowa 242, 8 Am. & Eng. E. E. Cas. 210 148, 152, 155 C, I. By., Ferguson v., 58 Iowa 293, 5 Am. & Eng. E. E. Cas. 614 374, 376 Ford v., Iowa , 17 Am. & Eng. It. E. Cas. 599 434 Kellow v., Iowa , 21 Am. & Eng, E. E. Cas. 485 276 Sloan v., 62 Iowa 728, 11 Am. & Eng. E. E. Cas. 145 135 C, I. & B. E. E., Hagenlocker v., 99 N. Y. 136 417 Clark v. Chambers, 3 Q. B. D. 327 39, 95, 148, 187 v. C, B. & Q. E. E., 92 111. 43 342 v. Frv. 8 Ohio St. 358 122, 127 Holmes v., 6 H. & N. 349, 7 H. &N. 937 300,329, 350,382 T. H. & I. E. E. v., 73 Ind. 168, 6 Am. & Eng. E. E. Cas. 84 159, 169 McCully v., 40 Penna. St. 399, 406 447, 448 Kieto v., 1 Clif. 145 114 v. P. & E. E. E., 5 Weekly Notes of Cases (Penna.) 119 190, 196, 434 v. 8th Ave. E. E., 36 N. Y. 135 290 v. E. & D. E. E., 78 Va. 709, 18 Am. & Eng. E. E. Cas. 78 302, 345 v. St. P. & S. C. E. E., 28 Minn. 128, 2 Am. & Eng. E. R. Cas. 240 345 C & E. I. Ey. v., 108 111. 113,15 Am. & Eng. E. E. Cas. 261 346 v. B. & A. E. E., 128 Mass. 1, 1 Am. & Eng. B. E. Cas. 134 375 C. L. E. E., Davis v., 10 How. Pr. 300 213 Clayards v. Dethick, 12 Q. B. 439, 64 E. C. L. 16, 17, 19, 54, 63 Clay St. Hill Co., Tompkins r.,9 Cal. , 18 Am. & Eng. E. E. Cas. 144 86, 394 Clayton, Deane v., 7 Taunt. 489, 2 E. C. L. 183 Clemmons, H. & T. C. E. E. v., 55 Tex. 88, 8 Am. & Eng. E. E. Cas. 396 286 Cleveland v. Speyer, 16 C. B. N. S. 399, 111 E. C. L. 371 v. N. J. S. Co., 68 N. Y. 306 204, 213 xxvm TABLE OF CASES CITED. Cliff v. M. Ry., L. R. 5 Q. B. 258 165, 166 Clough. Williams v., 3 H. & N. 258 300, 344 Packet Co. v., 20 Wall. 529 416, 509 Clussman v. L. I. R. E., 73 N. Y. 606 214, 253 Cleghorn v. N. Y. C. & H. E. E. E., 56 N. Y. 44 314 Clotworthv, H. & St. J. E. E. v., 80 Mo. 220, 21 Am. & Eng. E. E. Cas. 371 263, 264 C, L. & C. E. E., Thompson v., 54 Ind. 197 154 (X, M. & St. P. E. E., Abbett v., 30 Minn. 482 436, 454 Brown v., 54 Wise. 342, 3 Am. & Eng. E. E. Cas. 444 25, 27, 292, 467 Foss v., 33 Minn. 392, 19 Am. & Eng. E. R. Cas. 113 224 Gumz v., 52 Wise. 672, 5 Am. & Eng. E. E. Cas. 583 112, 383 Hoppe v., 61 Wise. 357, 19 Am. & Eng. E. E. Cas. 74 77, 197, 425 Kelly v., 53 Wise. 74, 5 Am. & Eng. E. E. Cas. 469 344 Jenkins v ,41 Wise. 112 112, 209 Pool v., 53 Wise. 657, 56 Id. 227, 3 Am. & Eng. E. E. Cas. 332, 8 Id. 360 205, 210, 286, 305, 307, 376 v. Ross, 112 U. S. 377 324, 325, 326, 362, 369 Grethen v., U. S. C C. Dis- trict of Minnesota, 19 Am. & Eng. R. R. Cas. 342 94, 192 Goldstein v., 46 Wise. 404 224 Holland v., 18 Fed. Rep. 243 375 Cunningham v., 17 Fed. Rep. 882, 12 Am. & Eng. R. R. Cas. 217 374, 376, 379 Bower v., 61 Wise. 457, 19 Am. & Eng. R. R. Cas. 301 169, 420 Louckst>., 31 Minn. 526, 19 Am. & Eng. R. R. Cas. 305 163, 169 Mantel v.. 33 Minn. 62, 19 Am. & Eng R. R. Cas. 362 168 M. St. Ry. v., 33 Minn. 62, 19 Am. & Eng. R. R. Cas. 362 168 Schofield v., 114 U. S. 615, 19 Am. & Eng. R. R. Cas. 353 169, 172 C, M. & St. P. R. R., Townley v., 53 Wise. 626, 4 Am. & Eng. R. R. Cas. 562 69, 179 Berg v., 50 Wise. 419, 2 Am & Eng. R. R. Cas. 70 344 Cottrill v., 47 Wise. 634 379 Hogan v., 59 Wise. 139, 15 Am. & Eng. R. R. Cas. 439 74, 167, 454 Kelley v., 50 Wise. 381, 2 Am. & Eng. R. R. Cas. 65 378 Luebke v., 59 Wise. 127, 15 Am. & Eng. R. R. Cas. 183 347 Muster v., 61 Wise. 325, 18 Am. & Eng. R. R. Cas. 113 102, 256, 299, 318, 443 Phillips v., 64 Wise. 475, 23 Am. & Eng. R. R. Cas. 453 323 Peschel v., 62 Wise. 338, 17 Am. & Eng. R. R. Cas. 545 323, 338, 368 Schaefert v., 62 Iowa 624, 14 Am. & Eng. R. R. Cas. 696 171 Smith v., 42 Wise. 520 235, 345 Walsh v., 42 Wise. 23 25, 466 Robinson v., 60 Wise. 320, 22 Am. & Eng. R. R. Cas. 391 373 Schultz v., 48 Wise. 375 330, 369 Thompson v., 18 Fed. Rep. 239 683 Kearns v., 66 Iowa 599, 22 Am. & Eng. R. R. Cas. 287 308 Ditberner v., 47 Wise. 138 192 Cockle v. L. & S. E. Ry., L. R. 5 C. P. 457, 7 Id. 331 266, 267 Coates, B. C. R. & N. R. R., 62 Iowa 487, 15 Am. & Eng. R. R. Cas. 265 346, 431 Cobb, I. & St. L. R. R. v., 68 111. 53 471 Cockrell, Francis v., L. R. 5 Q. B. 184, 501 200, 201, 237 Coggs v. Bernard, 2 Ld. Raymond 918, 1 Sm. L. C 189 207, 231 Cole, Schall v., 107 Penna. St. 1 50, 301 Colegrove v. N. Y. & N. H. R. R., 20 N. Y. 492, 6 Duer 382 86, 282, 287, 413 Coleman v. S. E. Ry., 4 H. & C. 699 277 v. Riches, 16 C. B. 104, 81 E. C L. 102 v. N. Y. & N. H. R. R., 106 Mass. 160 108 TABLE OF CASES CITED. XXIX Coleman v. Southwick, 9 Johns. 45 470 Colgan v. W. P. P- Ry., 4 Weekly Notes of Cases (Penna.) 400 71 Collarn, O. & M. K. K. v., 73 rnd. 261, 5 Am. & Eng. K. R. 314, 315, 316, 330, 469, 470 Colder, Laing v., 8 Penna. St. 479 233, 473, 501 Collett v. L. & N. W. Ry., 16 Q. B. 984, 71 E. C. L. 215 Collins, Harrison v., 86 Penna. St. 153 126 B. & E. Ry. v., 7 H. L. 194 137 v. E. T. V. & G. R. R., 9 Heisk. (Tenn.) 841 493 L. & N. Ry. v., 2 Duvall 114 50, 327, 355, 370 v. Middle Level Commrs., L. R. 4 C. P. 279 39, 95 P. F. W. & C. R. R. v., 87 Penna. St. 405 190 v. St. P. & S. C. R. R., 30 Minn. 31, 8 Am. & Eng. R. R. Cas. 150 368 v. A. & S. R. R., 12 Barb. 492 282 Coleman, Jencks v., 2 Sumner 221 251 M. C. R. R. v., 28 Mich. 440 260, 264, 416 Collis v. Selden, L. R. 3 C. P. 495 177 Colver, Griffen v., 16 N. Y. 489 460 Cone v. P., L. & W. R. R., 81 N. Y. 207, 2 Am. & Eng. R. R. Cas. 57 306, 337 Robinson v., 22 Vt. 213 91 Connelly v. N. Y. C. & H. R. R. R, 88 N. Y. 346, 8 Am. & Eng. R. R, Cas. 459 170 Connell, H. M. & F. Ry. v., 88 Penna. St. 520 188, 196 Condon, M. P. Ry. v., 78 Mo. 567, 17 Am. & Eng. R. R. Cas. 563 330, 369 Conway v. B. & N. C. Ry., 9 Irish C. L. 498 368 Commonwealth, Pierce v., 14 Weekly Notes of Cases (Penna.) 97 4 v. B. & M. R. R., 129 Mass. 500, 1 Am. & Eng. R. R. Cas. 457 214 P. & E. R. R. v., 80 Ky. 147, 10 Am. & Eng. R. R. Cas. 318 155 v. Power, 7 Mete. 596 v. Smith, 10 Allen 448 134 200 495 65 149 338 158 146 501 Commonwealth v. Vt. C. R. R., 108 Mass. 7 216 Condon v. G., S. & W. Ry., 16 Irish C. L. 415 489 Connor v. C, R. I. & P. Ry., 59 Mo. 285 316 Conroy, T., W. & W. R. R. v., 68 111. 560 240, 303, 305 v. Iron Works, 62 Mo. 35 382 Conservators of the Thames, Winch v., L. R. 9 C. P. Cook, C. Ry. of N. J. v., 1 Weekly Notes of Cases (Penna.) 319 Mohney v., 26 Penna. St. 342 Cooke v. B. & L. R. R., 133 Mass. 185 Coombs r. N. B. Cordage Co., 102 Mass. 522 Coon v. S. & N. R. R., 5 N. Y. 492 323, 356, 368 P. R. R. v., 17 Weekly Notes of Cases (Penna.) 137 Coons, M. N. Co. v., 6 W. & S. 101 Cooper, Berry v., 28 Ga. 543 v. Butler, 103 Penna. St. 412, 14 Weekly Notes of Cases (Penna.) 278 373, 274 v. C. R. R., 44 Iowa 134 300, 301,316,418 v. E. T. Co., 75N.Y. 116 413 v. M. & P. R. R., 23 Wise. 668 315 v. P., C. & St. L. R. R, 24 W. Va. 37, 21 Am. & Eng. R. R. Cas. 564, note 330, 369 L. & N. R. R. v., Ky. 6 Am & Eng. R. R. Cas. 5 193 Copper v L., E. & St. L. Ry., Ind. , 22 Am. & *Eng. R. R. Cas. 277 323, 368 Coolbroth v. M. C. R. R., 77 Me. 165, 21 Am. & Eng. R. R. Cas. 599 347 Cotton v. Wood, 8 C. B. N. S. 568, 98 E. C.L. 6,112,434 C. O. R. R., Timmon v., 6 Ohio St. 105 376 Corson v. M. C. R. R., 76 Me. 244, 17 Am. & Eng. R. R. Cas. 634 315 Coyle, II. R. R. v., 55 Penna. St. 396 168, 416 Cox, Pearson v., 2 C. P. D. 369 122 I. C. R, R. v., 21 111. 20 368 Cowles v. R. & D. R. R., 84 N. C. 309, 2 Am. & Eng. R. R. Cas. 90 303, 323, 324, 370 XXX TABLE OF CASES CITED. Cogswell v. O. & C. E. E., 6 Ore- gon 417 75 Conlon u. E. R. E., 135 Mass. 195, 1") Am. &Eng. E. E. ( 'as. 99 151 Conlan, Penna. Co. v., 101 111. 93, ti Am. & Eng. E. E. Cas. 243 364, 426 Copeland, M. & C. E. E. v., 61 Ala. 376 266, 2S3 Corby v. Hill, 4 C. B. N. S. 556, 93 E. C. L. 200 Corey v. N. P. By., 32 Minn. 457, 19 Am. &Eng. E. B. Cas. 352 151 Corcoran v. B. & A. E. E., 133 Mass. 507 299, 434, 442, 444 Cordell v. N. Y. C. & H. E. E. E., 64 N.Y. 535, 70 Id. 119, 75 Id. 330 160, 171, 434 Copley v. N. H. & N. Co., 136 Mass. 6, 19 Am. & Eng. B. E. Cas. 373 173 Costar, Harris v., 1 C. & P. 636, HE. C. L. 232 Costello v. S. E. E. B., 65 Barb. 92 240 Coucb v. Steel, 3 E. & B. 402, 77 E. C. L. 40 Coultas, P., B. I. & St. L. E. E. v., 67 111. 398 284 Coupland v. Hardingham, 3 Camp. 398 148 Corcoran v. Holbrook, 59 N. Y. 517 320 Cornman v. E. C. By., 4 H. & N. 78 25, 255, 257 Cottrell ». O, M. & St. P. By., 47 Wise. 634 379 Corlis v. W., ST. & E. E. E., N. H. , 21 Am. & Eng. E. B. Cas. 208 406 Conway, P., W. & B. E. E. v., 17 Weekly Notes of Cases (Penna.) 429 496 Conn. Mut Life Ins. Co. v. N. Y. & N. H. E. E., 25 Conn. 265 399 Oosgrove v. N. Y. C. & H. E. B. B., 87 N. Y. 88, 6 Am. & Eng. E. E. Cas. 35 160, 161 (Jollier, M. P. By. v., 62 Tex. 318, 18 Am. & Eng. E. E. Cas. 281 276 Commonwealth v. B. & L. B. B., 134 Mass. 211 405 C. P. I. Co., Larmore v., 101 N. Y. 391 177 C, P. & A. B. B. v. Curran, 19 Ohio St. 1 204, 502 C. P. Mfg. Co. v. Ballou, 71 111. 418 342 C, P., N. & E. E. E., Twomley v., 69 N. Y. 158 62 C. P. E. E., MeQuilken v., 64 Cal. 463, 16 Am. & Eng. B. E. Cas. 353 2o9 McQuilkin v., 50 Cal. 7 353 Kline v., 37 Cal. 400, 587 109 Durkee v., 56 Cal. 388 492 Sweeny v., 57 Cal. 15, 8 Am. & Eng. K. E. Cas. 151 343, 344 Nekrbas v., 62 Cal. 320, 14 Am. & Eng. E. E. Cas. 370 166 Bunting v., 14 Nev. 351, 6 Am. & Eng. E. E. Cas. 282 427 C. P. By. v. Foxlev, 107 Penna. St. 537 454 v. Swayne, 13 Weekly Notes of Cases (Penna.) 41 440 Cragin v. N. Y. C. E. E, 51 N. Y. 64 502 Craker v. C. & N. W. By., 36 Wise. 657 114 C, E. I. & P. E. B. v. Bell, 70 111. 102 74, 171 McCorkle v., 61 Iowa 5">5, 18 Am. & Eng. E. E. Cas. 156 264, 265 McCarthy v., 18 Kans. 45 409 v. Huflman, 78 Mo. 50, 17 Am. & Eng. B. E. Cas. 625 314, 315, 318 Morris v., 65 Iowa 727, 19 Am.&Eng.E.B.Cas. 180 409 v. Doyle, 18 Kans. 58 314 Artz v., 34 Iowa 153 170 Beems v., 58 Iowa 150, 10 Am. & Eng. E. E. Cas. 658 377 Brann v., 53 Iowa 595 303, 330, 369 Deppe v., 36 Iowa 52 383 Farley v., 42 Iowa 234, 56 Id. 337, 2 Am. & Eng. E. E. Cas. 108 155, 375 Kroy v., 32 Iowa 357 373 Lindsey v., 64 Iowa 407, 18 Am. & Eng. E. E. Cas. 179 264 Perigo v., 52 Iowa 276 373 v. Houston, 95 U. S. 697 168, 169, 172 v. Lewis, 109 111. 120, 19 Am. & Eng. E. E. Cas. 224 508 Schroeder v., 47 Iowa 375, 41 Id. 344 383, 424 TABLE OF CASES CITED. XXXI C, R. I. & P. R. R., Simonson v., 49 Iowa 19 431 Frandsen v., 36 Iowa 372 383 Hart v., 56 Iowa 166 161 Lombard v., 47 Iowa 494 383 Murphy v., 45 Iowa 661 436 Case v., 64 Iowa 762, 19 Am. & Eng. K. R. Cas. 142 442 Baldwin v., 50 Iowa 680 309 Mever v., 57 Iowa 555, 8 Am. & Eng. K. R. Cas. 527 302 Mayes v., 63 Iowa 562, 8 Am. & Eng. R. R. Cas 527 306 Marron v., 59 Iowa 423, 8 Am. & Eng. R. R. Cas. 177 109, 115 Dunleavy v., Iowa , 21 Am. & Eng. R. R. Cas. 542 112 Benton v., 55 Iowa 496 109 Bryant v., 63 Iowa 464, 16 Am. & Eng. R. R. Cas. 335 114 Baird v., 55 Iowa 121, 13 N. W. Rep. 731, 8 Am. & Eng. R. R. Cas. 128; 61 Iowa 359, 12 Am. & Eng. R. R. Cas. 75 305 Campbell v., 45 Iowa 76 377 Connor v., 59 Mo. 285 316 Hatfield v., 61 Iowa 434, 11 Am. & Eng. R. R. Cas. 153 48 Houser v., 60 Iowa 230, 8 Am. & Eng. R. R. Cas. 501 306 Johnson v., 58 Iowa 348, 8 Am. & Eng. R. R. Cas. 206 109, 115 Koontz v., 65 Iowa 224, 18 Am. & Eng. R. R. Cas. 85 305, 345 Goodwin v., 75 Mo. 73, 11 Am. & Eng. R. R. Cas. 460 158 O'Keefe v., 32 Iowa 467 60 Pringle v., 64 Iowa 613, 18 Am. & Eng. R. R. Cas. 91 381, 417 Payne v., 39 Iowa 523 86 Pence v, 63 Iowa 746, 19 Am. & Eng. R. R. Cas. 366 168, 172 Rasmusson v., 65 Iowa 236, 18 Am. & Eng. R. R. Cas. 54 349 Romick v., 62 Iowa 627, 15 Am. & Eng. R. R. Cas. 288 376 Carlin v., 337 Iowa 316 170 C, R. I. & P. R. R. v. Dignan, 56 111. 487 166 Funston v., 61 Iowa 452, 14 Am. & Eng. R. R. Cas. 640 166, 169 Walters v., 41 Iowa 71 77, 195 Laverenz v., 56 Iowa 689, 6 Am. & Eng. R. R. Cas. 274 169, 170 Tuttle v., 42 Iowa 518 411,481 Tuttle v., 48 Iowa 236 275, 439 MeAra v., 52 111. 296 275 Allender v., 43 Iowa 276 288 Martensen v., 60 Iowa 705, 11 Am. & Eng. R. R. Cas. 233 376 Whitsett v., Iowa , 22 Am. & Eng. R. R. Cas. 336 377 C. R. R., Steele v., 43 Iowa 109 375 v. Sears, 61 Ga. 279 379 Benton v., 42 Iowa 192 169 v. Feller, 84 Penna. St. 226 166, 169, 454 Harty v., 42 N. Y. 468 1G0 Lindsay v., 46 Ga. 447 417 Moore v., 47 Iowa 688 169 Perkins v., 44 N. H. 223 417 Thompson v., 54 Ga. 509 60 v. Dixon, 42 Ga. 327 283 v. Brinson, 70 Ga. 207, 64 Id. 475, 19 Am. & Eng. R. R. Cas. 42 190, 192, 197, 443 v. Letcher, 69 Ala. 106, 12 Am. & Eng. R. R. Cas. 115 264, 265 Cooper v., 44 Iowa 134 300, 301, 316, 418 Berry v., 40 Iowa 564 470 v. Perry, 58 Ga. 461, 66 Id. 746 213, 261, 264 Murch v., 29 N. H. 9 138, 251, 292 Davis v., 60 Ga. 329 474 v. Mitchell, 63 Ga. 177, 1 Am. & Eng. R. R. Cas. 145 305, 383 v. Kennev, 58 Ga. 485, 64 Id. 100, 8 Am. & Eng. R. R. Cas. 155 307 Kenney v., 61 Ga. 590 307 v. Armstrong, 49 Penna. St. 193, 52 Id. 282 56, 60, 221, 227, 372, 491 Black v., 10 La. An. 38 233 Kinney v., 32 K J. L. 407 502 MacDougall v., 63 Cal. 431, 12 Am. & Eng.R. R.Cas. 143 436 XXX11 TABLE OF CASES CITED. C. R. R. v. Roach, 64 Ga. 635, 8 Am. & Eug. R. R. Cas. 79 15, 62, 376, 491 v.VanHorn, 38 N. J. L. 133 262, 266 v. Richards, 62 Ga. 306 431 Hulsencamp v., 37 Mo. 537 54 Williams v.. 43 Iowa 396 302, 303, 374, 376 York v., 3 Wall. 113 501 v. Sears, 66 Ga. 409 471 v. Cook, 1 Weeklv Notes of Cases (Penna.)"319 495 Demuckt!., 103 U. S. Ill, 1 Am. & Eng. R. R. Cas. 309 409 Kinney a., 34 N. J. L. 513 208, 505 McNaughton v., 19 Ct. of Sess. Ca. 271 357 Hard v., 32 Vt. 473 366 C. R. R. R., Randall v., 132 Mass. 269 169 Riley v., 135 Mass. 292, 15 Am. & Eng. R. R. Cas. 181 444 Lawless v., 136 Mass. 1, 18 Am. & Eng. R. R. Cas. 96 307. 329, 337, 369, 380 Allender v., 37 Iowa 264 213, 480 Crafter v. Metropolitan Ry., L. R. 1 C. P. 300 258 Crassweller, Mitchell v., 13 C. B. 237, 76 E. C. L. 102, 104 Crater v. Bininger, 33 N. J. L. 512 460 Creed v. P. R. R., 86 Penna. St. 139 47, 56, 209, 250, 252, 287, 445 v. Fisher, 9 Ex. 472 470 Cregin v. B. C. R. R., 83 N. Y. 595 398, 481 Cremer v. Portland, 36 Wise. 92 47 Crickett, McManus v., 1 East 107 108, 112 Crispin v. Babbitt, 81 N. Y. 516 328 Crissey v. H. M. & F. Ry., 75 Penna. St. 83 68, 454 Crocheron v. N. S. S. I. Ferry, 56 N. Y. 656 258 Crocker, Kinsey v., 18 Wise. 74 163 Croft v. Alison, 4 B. & Aid. 590, 6E. C. L. 112, 113 Crook, S. Ex. Co. v., 44 Ala. 468 501 Crossan, Murphy v., 98 Penna. St. 495 300 Crowley v. B. C. R. & N. R. R., 65 Iowa 658, 18 Am. & Eng. R. R. Cas. 56 318 Crump, Jordin v., 8 M. & W. 782 183 Crutchfield v. R. & D. R. R., 78 N. C. 300, 76 Id. 320 337, 374 Crofts v. Waterhouse, 3 Bing. 319, HE. C. L. 447 C. S. B. Co., McGinnis v., 49 Mich. 466, 8 Am. & Eng. R. R. Cas. 135 301, 302, 306, 338 C, St. L. & N. O. R. R. v. Doyle, 60 Miss. 977, 8 Am. & Eng R.R. Cas. 171 366 Perkins v., 60 Miss. 726, 21 Am. & Eng. R. R. Cas. 242 292 Peniston v., 34 La. An. 777 254 v. Trotter, 61 Miss. 417, 18 Am. & Eng. R. R. Cas. 159 259, 434 v. Trotter, 60 Miss. 442 443 v. Scnrr, 59 Miss. 456, 6 Am. & Eng. R. R. Cas. 351 263, 471 Moore v., 59 Miss. 243, 9 Am. & Eng. R. R. Cas. 401 416 C, St. P. & M. R. R., Jewel v., 54 Wise. 610, 6 Am. & Eng. R. R. Cas. 379 265 C, St. P., M. & O. R. R, Ransom v., 62 Wise. 178, I9Am.& Eng. R. R. Cas. 16 160 v. Lundstrom, 16 Neb. 254, 21 Am. & Eng. R. R. Cas. 52S 370 Lawson v., 64 Wise. 447, 21 Am. & Eng. R. R. Cas. 249 205 C. St. Ry. v. Steen, 42 Ark. 321, 19 Am. & Eng. R. R. Cas. 30 54, 471, 472 C. S Co., Fairchild v., 13 Cal. 604 233 C. S. R. R., McKune v., Cal. 17 Am. & Eng. R. R. Cas. 589, 21 Id. 539 322, 370, 377 Trask v., 63 Cal. 96, 11 Am. & Eng. R. R. Cas. 192 365 McKinne v., Cal. , 21 Am. & Eng. R. R. Cas. 539 323 C. S. N. Co., Leonard v., 84 N. Y. 48 409 C. S. & M. S. R. R., Kinsley v., 125 Mass. 54 243 Cubitt, Rapson v., 9 M. & W. 710 102, 122 Culhane v. N. Y. C. & H. R. R. R., 60 N. Y. 133 427 Culp v. A. & N. R. R., 17 Kans. 475 151 TABLE OF CASES CITED. XXX111 PAOE Cuddy v. Horn, 46 Mich. 596 413 Cummings, G. T. Ry. v., 106 U. S. 700 337 v. P., C. & St. L. Ey., 92 Penna. St. 82 229 Cunningham v. I. R. R., 51 Tex. 503 122 v. C., M. & St. P. Ry., 17 Fed. Rep. 882, 12 Am. & Eng. R R. Cas. 217 374, 376, 379 Wilson v., 3 Cal. 241 158 Curran, C. P. & A. R. R. v., 19 Ohio St. 1 204, 502 Currie, Murray v., L. R. 6 C. P. 24 102, 122 Curtis v. D. & M. R. R., 23 Wise. 152, 27 Id. 158 263, 264 v. R. & S. R. R., 18 N. Y. 534 38, 275, 434, 439, 440, 473, 474 Mulligan v., 100 Mass. 512 70 Cutter, K."P. R. R. v., 19 Ivans. 83 469 C. V. R. R., Davis v., 55 Vt. 84, 8 Am. & Eng. R. R. Cas. 173 34, 303, 305, 330, 369 v. Mangans. 61 Md. 53, 18 Am. & Eng. R. R. Cas. 182 264 v. Hughes, 11 Penna. St. 140 148 v. Myers; 55 Penna. St. 288 212, 371 Mann v., 55 Vt. 484, 14 Am. & Eng. R. R. Cas. 620 156 Ryan v., 23 Penna. St. 384 211, 356, 367 Johnson v., 56 Vt. 707 106 Merrill v., 54 Vt. 200, 11 Am. & Eng. R. R. Cas. 680 222, 372 O. W. D. Ry.. Mills v., 105 111. 63, 11 Am. & Eng. R. R. Cas. 128 263, 274 C. & A. R. R. v. Baldauf, 16 Penna. St. 67 501 Foster v., 84 111. 164 376 v. Bonifield, 104 111. 223, 8 Am. & Eng. R. R. Cas. 443 264, 364 v. Shannon, 43 111. 338 301, 482 Farnham v., 55 Penna. St. 62 501 v. Mock, 88 111. 87 434 v. Gretzner, 46111. 76 54, 427 v. Rush, 84 111 570 374, 376 v. Hoosey, 99 Penna. 492, 6 Am. & Eng. R. R. Cas. 254 284 v. Piatt, 89 111. 141 304, 307, 346 v. I'ondrum, 51 HI. 333, 54, 284 c C. & A. R. R. v. Robinson, 106 111. 142, 13 Am.&Eng.R. R. Cas. 620, 19 Id. 396 162, 427, 431 v. Wilson, 63 111. 167 256 v. Sullivan, 63 111. 293 314 v. Flagg, 43 111. 364 108, 251 People v., 67 111. 118 155 v. Garvey, 58 111. S3 166 v. McLaughlin, 47 111. 265 188 v. Hogarth, 38 111. 370 193 v. Randolph, 53 111. 510 288 v. Munroe, 85 111. 25 373 v. Becker, 76 111. 25 74 v. May, 108 111. 288, 15 Am. & Eng. R. R, Cas. 320 322 v. Keefe, 47 111. 108 367 v. Murphy, 53 111. 336 368 Gregory o, 58 111. 226 69,76 C. & B. R. R. v. Michie, 83 111. 427 188, 208, 209 C. & B. St. Ry., Brown v., 49 Mich. 153, 8 Am. & Eng. R. R. Cas. 385 112, 434 C. & E. Spring Co. v. Edgar, 99 U. S. 645 145 C. & E. R. R. v. Flexman, 103 111. 546, 8 Am. & Eng. R. R. Cas. 354 114 C. & E. I. R.R. v. Geary, 110 111. 383, IS Am. & Eng. R. R. Cas. 606 317, 368, 373 C. & G E. R. R., Brignoli v , 4 Daly 182 240, 275, 439 C. & G. R. R., Carter v., 19 Shand (S. C.) 20, 15 Am. & Eng. R. R. Cas. 414 191, 454 v. Fay, 16 111. 568 292 C. & G. E."R. R. v. Harney, 28 Ind. 28 342, 350 C. & G. T. Ry., Batterson v., 49 Mich.*184, 8 Am. & Eng. R. R. Cas. 123 301, 304, 305, 346 Cartwright v., 52 Mich. 606, 16 Am. & Eng. R. R. Cas. 321 266 Hilts v., 55 Mich. 437, 17 Am. & Eng. R. R. Cas. 628 315 Mitchell v., 51 Mich. 236, 18 Am. & Eng. R. R. Cas. 176 262, 265, 270, 434, 443 Piquegno v., 52 Mich. 40, 12 Am. & Eng. R. R. Cas. 210 344 C. & I. R. R. v. Russell, 91 111. 298 308 C. & I. C. R. R. v. Farrell, 31 Ind. 408 103, 253, 262, 266, 467 C. & II. Ry., Grote v., 2 Ex. 251 217, 236, 237, 240 X xxiv TABLE OF CASES CITED. C. & N. W. E. R., Bass, v., 36 Wise. 450, 39 Id. 636, 42 Id. 654 113, 251, 416 Ballou v., 54 Wise. 257, 5 Am. & Eng. R. R. Cas. 480 307, 309, 346 Delie v., 51 Wise. 400 28, 473 v. Button, 63 111. 409 411 v. Bayfield, 37 Mich. 205 112, 350 Johnson v., 49 Wise. 529, 1 Am & Eng. R. R. Cas. 155 69 Ewen v., 38 Wise. 614 69, 76 Johnson v., 56 Wise. 274, 8 Am. & Eng. R. R. Cas. 47 1 69 Willoucrhby v., 37 Iowa 432 434 Woodward v., 23 Wise. 400 490 Sweet v., 45 111. 197 4S2 v. Miller, 46 Mich. 532, 6 Am. & Eng. R. R. Cas. 89 75, 169 Dewey v., 31 Iowa 373 88 Craker v., 36 Wise. 657 114 Dimick v., 80 111. 338 166 Hoye v., 62 Wise 666, 1 9 Am. & Eng.R. R. Cas. 347 168, 454 Griswold v., Wise. , 23 Am. & Eng. R. R. Cas. 463 220 Marqnetce v., 33 Iowa 562 109 McKinley v., 44 Iowa 314 114 Quaife v.', 48 Wise. 513 254 Davis v., 18 Wise. 175 263, 264, 265 Bessex v., 45 Wise. 477 308 Stetler, 49 Wise. 609 138 Davis v., 58 Wise. 646, 15 Am. & Eng. R. R. Cas. 424 179 v. Dimick, 96 111. 42, 2 Am. & Eng. R. R. Cas. 201 169 Duffy v., 32 Wise. 269 169 Fowler v., 61 Wise. 169, 17 Am. & Eng. R. R. Cas- 536 346, 369 Hunt v., 26 Iowa 363 356 v. Jackson, 55 111. 492 304, 329 Skellenger v., 61 Iowa 714, 12 Am. & Eng. R. R. Cas. 206 346 v. Tavlor, 69 111. 461 319 Ryan v., 60 111. 171 330, 369 v. Whitton. 13 Wall. 270 409 W T edgwood v., 44 Wise. 44, 41 Id. 478 300, 307 v. Ward, 61 111. 130 345 v. Miranda, 108 111. 576, 18 Am. & Eng. R. R. Cas. 564 364 v. Moranda, 93 111 302 370 Bel air v., 43 Iowa 662 377 Haley v., 21 Iowa 15 26 Potter^., 21 Wise. 372, 22 Id. 615 60, 489 v. Fillmore, 57 111. 265 253, 416 C. & N. W. R. R., Allison v., 42 Iowa 274 29, 292, 421 Flanagan v., 45 Wise. 98, 50 LI. 462, 2 Am. & Eng. R. R. Cas. 150 302, 307, 345 Foley v., 48 Mich. 622, 6 Am. & Eng. R. R. Cas. 161 344 v. Donahue, 75 111. 106 318, 344, 373 Hartwig v., 49 Wise. 358, 1 Am. & Eng. R. R. Cas. 65 253 Heine v., 58 Wise. 528 327, 366 Lockwood v., 51 Wise. 50, 6 Am. & Eng. R. R. Cas. 151 318, 374, 376 v. Smith, 46 Mich. 504, 4 Am. & Eng. R. R. Cas. 535 112, 188, 189, 434 McDonald v., 26 Iowa 124, 29 Id. 170 250, 251, 254, 273, 431 Naylor v., 53 Wise. 661, 5 Am. & Eng. R. R. Cas. 460 343, 349 Patten v., 32 Wise. 524, 36 Id. 413 254 Roberts v., 35 Wise. 679 156, 166 v. Scates, 90 111. 586 254 v. Sweeny, 52 111. 330 60, 173 Jucker v., 52 Wise. 150, 2 Am. & Eng. R. R. Cas. 41 28 Brabbitts v., 38 Wise. _!S9 356 Pease v., 61 Wise. 163, 17 Am. & Eng. R. R. Cas. 527 327, 338, 346, 366 C. & G. T. R. R., Rhodes v., Mich. , 21 Am. & Eng. R. R. Cas. 659 154, 427 Keyser v., Mich. , 19 Am. & Eng. R. R. Cas. 91 196. 198 C. & G. E. R. R., Marshall v., 48 111. 475 418 C. & I., C. C. R. R. v. Arnold, 31 Ind. 174 306, 366 C. & M. R. R., Imhoff v., 20 Wise. 314 215, 263 C. & W. M. Ry., Maltby v., 52 Mich. 108,13 Am. & Eng. R. R. Cas. 606 156 C. & R. I. R. R. v. McKean, 40 111. 218 173 C. & T, R. R., Simmons v., 110 111. 340, 18 Am. & Eng.R. R. Cas. 50 349 Manville v., 11 Ohio St. 417 368 TABLE OF CASES CITED. XXXV C & P. R. R. v. Rowan, 66 Penna. St. 393 174, 407, 436, 444, 492, 493, 495 v. The State, 44 Md. 283 306 v. Speer, 56 Penna. St. 325 146 v. Sutherland, 19 Ohio St. 151 74 Beard i\, 48 Vt. 101 254 Wakefield v., 37 Vt. 330 161 C. & P. S. Ferry Co. v. Monaghan, 10 Weekly Notes of Cases (Penna.) 46 282, 440 C. & R. I. R. R. v. Rung, 104 111. 641, 11 Am. &Eng. R. R. Cas. 218 306 v. Clark, 108 111. 113, 15 Am. & Eng. R. R, Cas. 261 346 v. Whipple. 22 111. 105 133, 141 C. & St. L. R. R. v. Woosley, 85 111. 370 127 C. & St. P. R. R. v. McCarthy, 20 111. 385 133, 141 C. & S. Ry., Hughes v., 39 Ohio St. 461, 15 Am. & Eng. R. R. Cas. 100, and note 122, 125 C & Y. Ry., Burns v., 13 C. L. (N. S.) 543 237 C. & X. R. R. v. Webb, 12 Ohio St. 475 335, 343, 367 Daggett v. I. C. R. R., 34 Iowa 284 283, 374 Dahl v. M. C. Rv., 62 Wise. 652, 19 Am. & Eng. R. R. Cas. 121 76 Dahlberg v. M. St. Rv., 32 Minn. 404, 18 Am. & Eng. R. R. Cas. 202 285 Dale v. D. L. & W. R. R., 73 N. Y. 468 284, 422 v. St. L., K. C. & N. R. R., 63 Mo. 455 303, 375 Dalton v. Angus, 6 App. Cas. 740 129 v. S. E. Ry., 4 C. B. N. S. 296, 93 E. C. L. 488, 493 Dallas v. G. C. & S. F. R. R., 61 Tex. 196, 21 Am. & Eng. R. R. Cas. 575 368 Daley v. N. & W. R. R., 26 Conn. 591 91 Dalyell v. Tyrer, El. Bl. & El. 890, 96 E. C. L., 28 L. J. Q. B. 25 103, 217 Damont v. N. O. & C. R. R., 9 La. An. 441 _ 63, 265 Daniel v. Metropolitan Ry., L. R. 3 C P. 216, 591, 5 H. L. 45 38, 129, 434, 442 Daniells v. Potter, 4 C. & P. 262, 19 E. C. L. 39, 95, 187 Dames, Indermaur v., L. R. 1 C. P. 272, 2 id. 311 200 Davey v. L. & S. W. Rv., 11 Q. B. D. 213, 12 Id.' 73 172, 436 Davidson v. Graham, 2 Ohio St. 131 501 G. H. & S. A. R. R. v., 61 Tex. 204, 21 Am. & Eng. R. R. Cas. 431 277 Davies v. Mann, 10 M. & W. 546 51 Davis, Graham v., 4 Ohio St. 362 501 v. C. R. R.. 60 Ga. 329 474 v. C. L. R.R., 10 How. Pr. 300 213 v. C.V. R. R., 55 Vt. 84, 11 Am. & Eng. R. R. Cas. 173 34, 303. 305, 330, 369 Morrison v., 20 Penna. St. 171 31 v. Duncan (U. S. C. C, So. Dist. Miss.), 17 Am. & Eng. R. R. Cas. 295 135, l3o M. & W. R. R. v., 18 Ga. 679, 19 Id. 437 54 0.& M. R.R, v., 23 Ind. 553 135 v. O. & C. R. R., 8 Oregon 172 74, 420 v. C & N. W. Ry., 18 Wise. 175 263, 264, 26b M. & W. R. R. v., 27 Ga. 113 60 v. N.Y. C. & H, R, R, R., 47N.Y. 400 169 Davis v. C. & N. W. Rv., 58 Wise. 646, 15 Am. &Eng. R. R. Cas. 424 179 Daugherty, N. Y., L. E. & W. R. R. v., 11 Weekly Notes of Cases (Penna.) 437 240. 246, 274, 439 Dawson v. M. Ry., 7 H.& N. 1037 274, 439 v. L. & N. R. R., Kv. , 11 Am. & Eng. R. R. Cas. 134 261 Dana, Montclair v., 107 U. S. 162 4.54 Daily v. N. Y. & N. H, R. R., 32 Conn. 356 418 Darlington, Lax v., 5 Ex. D. 35, 18, 63, 200 Darrigan v. N. Y. & N. E. R. R., 52 Conn. 285, 23 Am. & Eng. R. R. Cas. 438 323 Day v. Highland St. Ry., 135 Mass. 113, 15 Am. & Eng. R. R. Cas. 150 65 v. Owen, 5 Mich. 520 251 v. T., C, S. & D. Ry., 42 Mich. 523, 2 Am. & Eng. R. R. Cas. 126 346, 356 XXXVI TABLE OF CASES CITED. Day v. Wood worth, 1 3 How. 371 47 1 Wilklns v., 12 Q. B. D. 110 490 v. B. C. R. R., 76 N. Y. 593 114 D. C S. Rv., Wood v., 52 Mich. 402," 19 Am. & Em*. R. R. Cas. 129 115 Bowen v., 54 Mich. 496, 19 Am. & Eng. R. R. Cas. 131 150 Dean, Jar vis v., 3 Bing. 447, 11 E. C. L. 14S Deane v. Clayton, 7 Taunt. 489, 2 E. C. L. 1S3 Murphy v., 101 Mass. 466 436 Debevoise v. N. Y., L. E. & W. R. R, 98 N. Y. 377 410 Decker, H. & B. T. R. R. v., 82 Penna. St. 119, 84 Id. 419 314, 330, 445, 491 De Forrest v. Wright, 2 Mich. 368 122 v. Jewett, 88 N.Y. 264, 8 Am. & Eng. R. R. Cas. 495 302, 305, 343, 345 Defries, Page v., 7 B. & S. 137 99 Degg v. Midland By., 1 II. & N. 773 212, 370, 371 De Graff v. N. Y. C. & H. R. R. R., 76 N. Y. 125 235, 307, 373 Delamatyr v. M. & P. M. C. R. R , 24 Wise. 578 264 Delahuntv, G. H. & S. A. R. R. v., 53 Tex. 206, 4 Am. & Eng. R. R. Cas. 628 306 Delie v. C. & N. W. Ry., 51 Wise. 400 28, 473 Delphi v. Lowery, 74 Ind. 520 469, 470 Delanev, R., R. I. & St. L. R. R. v., 82 111. 198 60, 490 Dennick v. C. R. R. of N. J., 103 U.S. Ill, 1 Am. & Ens. R. R. Cas. 309 ~ 409 Demy v. Williams. 5 Allen 1 454 v. N. Y. C. R. R., 13 . Gray 481 31 Dengate v. Gardiner, 4 M. & W. 6 481 Deppe v. C, R. I. & P. R. R., 36. Iowa 52 383 Derrenbaeker v. L. V. R. R.. 87 N. Y. 636, 4 Am. & Eng. R R. Cas 624 306 Derbv, P. & R. R. R. v., 14 How. 469 99, 232, 233, 390 Derwort v. Loomer, 21 Conn. 253 233 Desotelle, Lyons v., 124 Mass. 387 65 PAGh Dethick, Clavards v., 12 Q. B. 439, 64 E. C. L. 16, 17, 19, 54, 63 Devinney, P., F. W. & C. R. R. v., 7 Ohio St. 197 356 Devitt v. P. R. R , 50 Mo. 302, 3 Am. & Eng. R. R. Cas. 533 302, 345 Dewey, C, B. & Q. R. R„ 26 111. 255 260, 283 v. C. & N. W. Ry., 31 Iowa 373 88 Dexter t>. Spear 4 Mason 115 468 Delamater, Probst v., 100 N. Y. 266 301 Depew, B. & O. R. R. v., 40 Ohio St. 121, 12 Am. & Eng. R. R. Cas 64 191, 224 Devo v. N. Y. C. R. R., 34 N. Y. 9 47 D., G., H & M. Ry., Young v., Mich. , 19 Am. & Eng R. R. Cas. 417 151 D., H. & L. Ry., Taber v. t 71 N. Y. 489 262 Dibbin, Hinton v., 2 Ad. & El. N. S. 661, 42 E. C.L. 8 Dick v. I. C. & L. R. R., 38 Ohio St 3S9, 8 Am. & Eng. R. Cas. 101 370 Dickerson, O & M. R. R. v., 59 Ind. 317 474 Dickinson, Stone v , 5 Allen 29 394 «.N.E.Ev,2H & C. 735 492 v. P II. & N. R. R. W., 53 Mich. 43, 21 Am. & Eng. R. R Cas. 456, 18 N. W. Rep. (Mich.) 553 275, 285 Dietrich v. B & II S Ry , 58 Md. 347. 11 Am. & Eng. R. R. Cas. 115 291, 416, 454 Dills, K. C Ry. v., 4 Bush. (Ky.) 593 54, 471 Ditchett v. St P., D. & P. M. R. R,67N. Y. 425 133 Dixon v. Bell, 5 M & S. 198, 1 Stark 287, 2 E. C L. 39, 95 v. M Board of Works, 7 Q. B. D. 418 34, 146 v. B. C. & N. R. R., 100 N. Y. 171 275, 508 C. R. R. v., 42 Ga. 327 283 Dickson, C, B. & Q. R. R. v., 67 111. 122 411 C, B. & Q. R. R. v., 63 111. 151,7 Am. Ry. Rep. 45 114 C, B. & Q. R. R. v., 88 111. 431 151, 427 Dietrich v. P. R. R., 71 Penna. St. 432 215 TABLE OF CASES CITED. xxxvu Dillave v. N. Y. C. E. R., 56 Barb. 30 253 Diehl, U. P. K. K. v., 33 Kans. 422, 21 Am. & Eng. R. R. Cas 350 2G4 Disher v. N. Y. C. & H. B. R. R., 94 N. Y. 622, 15 Am. & Eng. E. E. Cas. 233 301, 307 District of Columbia v. B. & P. E. E., 4 Am. & Eng. E. E. Cas. 179 412 o. McElligott, 117 U, S. 621 382 Ditberner v. C, M. & St. P. Ry., 47 Wise. 138 192 Dickie v. B. & A. E. E., 131 Mass. 516, 8 Am. & Eng. E. E. Cas. 203 149 Dignan, C, E. I. & P. E. E, v., 56 111. 487 166 Dill, G. & C. E. E. E. v., 22 111. 264 157 Dimick v. C. & N. W. Ey., 80 111. 338 ' 166 C. & N. W. Ey. v., 96 111. 42, 2 Am. & Eng. E. E. Cas. 201 169 D., L. & W. E. E., Baylor v., 40 N. J. L. 23 302, 345 Cone v., 81 N. Y. 207, 2 Am. & Eng. R, E. Cas. 57 306, 337 Dale v., 73 N. Y. 468 284, 422 v. Naphevs, 90 Penna. St. 135, 1 Am. & Eng. E. E. Cas. 52 270, 271, 443 Eaton v., 57 N. Y. 382 210, 445 v. Mulberrin, 44 Penna. St. 375, 81 Id. 366 190, 227, 228 Eeeves v., 30 Penna. St. 454 55, 60 Bounds v., 64 N. Y. 137 114 Wasmer v., 80 N. Y. 212, 1 Am. & Eng. E. E. Cas. 122 48, 156 Woodbridge v., 105 Penna. St. 460, 16 Weekly Notes of Cases (Penna.) 55 35, 196 Thomas v., 19 Blatchf. 533 166 Bonnell v., 39 N. J. L. 189 169 D., L. & L. M. Ey., Lvon v., 31 Mich. 429 378 D., M. V. E. E., Eose v., 39 Iowa 246 208, 384, 502 Hamilton v., 36 Iowa 31 346 Doak, L. & B. E. E. v., 52 Penna. St. 379 246 Dobbin v. R. & D. E. E., 81 N. C. 446 323, 370 Dobiecki v. Sharp, 88 N. Y. 203, 8 Am. & Eng E. E. < as. 485 254, 256 Dolan, M. C. E. ft. v., 32 Mich. 510 314,356 v. D. & H. C. Co., 71 N. Y. 285 163 Donahue C. & N. W. Ev. »., 75 111. 106 3*18, 344, 373 G., H. & S. A. E. E. v., 56 Tex. 162, 9 Am. & Eng. .E. E. Cas. 287 112 P., A. & M. P. Ey. v., 70 Penna. St. 119 109, 115 Donaldson, Bussy »., 4 Dall. 206 468 v. M. & M. E. E., 18 Iowa 280 431,432,493 Dorr v. N. J. S. N. Co., 4 Sandf. S. C. 136 501 Dorsey v. P. & C. C. Co., 42 Wise. 583 308 Doss v. M., K. & T. E. E., 59 Mo. 37, 8 Am. Ev. Rep. 462 2*20, 264, 471 Dowell r. B. C. R, & N. Ry., 62 Iowa 629, 15 Am. & Eng. R. R. Cas. 153 434 v. V. & M. R. R., 61 Miss. 519, 18 Am. & Eng. R. R. Cas. 42 318, 376 v. G. S. Nav. Co., 5 E. & B. 195, 85 E. C. L. 52, 54 Downer, W. T. Co. v.. 11 Wall. 129 438 Downie v. Hendrie, 46 Mich. 49S, 8 Am. & Eng. R. R. Cas. 386 291 Downey, I. C. R. R. v., 18 111. 259 112, 115 Doyle, C, St. L. & N. O. R. R. v., 60 Miss. 977, 8 Am. & En^. R. R. Cas. 171 366 I. & G. N. Ry. v., 49 Tex. 190 307 Donovan, Batson v., 4 B. & Aid. 39 49S Doyle, C, R. I. & P. Ry. v., 18 Kans. 58 314 Dougherty v. C, B. & Q. R. R., 86 111. 467 265 C, B. & Q. R. R. v., 110 111. 521, 19 Am. & Eng. R. R. Cas. 292 162, 427 v. M. R. R., 81 Mo. 325, 21 Am. & Eng. R. R. Cas. 497 282, 440 Doughty v. L. D. Co., 76 Me. 143 356 Douglass, Manzoni »., 6 Q. B. D. 145 434 Dowling v. N. Y. C. & H. R. R. R.. 90 N. Y. 670, 1 2 Am. & Eng. R. R. Cas. 73 69 xxxvin TABLE OF CASES CITED. Drayton v. N. P. R. R, 10 Weekly Notes of Cases (Penna.) 55 152 Drew v. Peer, 93 Penna. St. 234 389 v. New River Co., 6 C. & P. 754, 25 E. C. L. 148 v. Sixth Ave. R R, 26 N. Y. 49 489 Drvburgh, N. Y. & W. Tel. Co. v., 33 Penna. St. 298 99 Dry mala v. Thompson, 26 Minn. 40 305, 329, 330 Drysdale, W. & A. R. R. v., 51 Ga. 644 474 D., S. P. & P. R. R. v. Pickard, 8 Colo. 163, 18 Am. & Eng. R. R. Cas. 286 n. 264, 265 Wilson v., 1 Colo. 101, 15 Am. & Eng. R. R. Cas. 192 319 v. Woodward, 4 Colo. 1 431 D. Turnpike Co. v. Stewart, 2 Mete. (Ky.) 119 86 Duckworth v. Johnson, 4 H. & N. 653 486, 488 Duggan, E., T. V. & G. R. R. v., 51 Ga. 212 416 Duff v. A. V. R. R-, 91 Penna. St. 458 188, 189, 196,208, 209, 217, 288 v. Budd, 3 Brod. & B. 177, 7 E. C. L. 7 v. G. N. Ry., 4 Irish Law Rep. 17^ 501 Duffy v. C. & N. W.Ry , 32 Wise. 269 169 Duffey, L. R. & F. S. R. R. v., 35 Ark. 602, 4 Am. & Eng. R. R. Cas. 607 301, 349 Duffield, E., T V. & G. R. R. v., 12 Lea(Tenn.)63, 18 Am. & Eng. R. R. Cas. 35 3S2 Dunbar, O. & M. R. R. v., 20 111. 623 141 Duncan, Davis v. (U. S. C. C. So. Diet. Miss), 17 Am. & Eng. R. R. Cas. 295 135, 136 Morse v. (U. S. C. C. So. Dist. Miss.), 8 Am. & Eng. R. R. Cas. 374 466 E. & C. R. R. v., 28 Ind. 441 265, 270 Dunk, Weller v., 4 F. & F. 298 148 Dunham, H. & T. C. Ry. v., 49 Tex. 187 303 Dunn v. G. T. Ry., 58 Me. 187 210, 233, 286, 292 P., F. W. & C. Ry v., 56 Penna. St. 280 155,156,163 A. &G. W.R. H.v., 19 Ohio St. 162 471 PAtiS Dunn v. B. Canal Co., L. R. 7 Q. B. 244, 8 Id. 4'. 14C C, B. & Q. R. R. v., 52 111. 451 151 Durgin v. Munson, 9 Allen 396 3U5 Durkee v. C. P. R. R., 56 Cal. 388 492 Durkin v. Sharp, 88 N. Y. 225, 8 Am. & Eng. R. R. Cas. 520 305, 330 T., W. & W. Ry. v., 76 111. 395 356 Dunkin, L., N. A. & C. Ry. v., 92 Ind. 601, 15 Am. & Eng. R. R. ( as. 422 108, 189 Dunleavy v. C, R. I- & P. Ry., Iowa , 21 Am. & Ens. R. R. Cas. 542 112 Dun v. S. & R. R. R-, 78 Va. 645, 16 Am. & Eng. R. R. Cas. 363 284 D., W. & P. Ry., Struthers v., 87 Penna. St. 282 146 D., W. & W. Ry. v. Slattery, 3 App. Cas. 1155 174, 180, 260, 427. 436, 448, 452, 454, 457 Dyke v. E. R. R, 45 N. Y. 113 497 Dynen v. Leach, 26 L. J. Ex. 221 373 Dyer v. E. R. R , 71 N. Y. 228 86 D. & B. J. Ry., Huey v., 5 Irish C. L. 206 373 D. & W. Ry., Scott v., 11 Irish Com. Law 377 54 v. Snicker, 61 Tex. 427, 21 Am.&Eng.R. R Cas. 160 240, 436, 491 D. & M. R. R., Curtis v., 23 Wise. 152. 27 Id. 158 263, 264 v. Van Steinburg, 17 Mich. 99 425 D. & S. C. R. R , Greenleaf v., 33 Iowa 52 373 D. & II. C. Co., Barringer v., 19 Hun. 216 307, 368 Mann v., 91 N. Y. 495 12 Am. &Eng. R.R. Cas.199 314, 315, 320, 329, 332 v. Carroll, 89 Penna. St. 374 320 321, 323 Massoth v., 64 N. Y. 531 159 Dolanw., 71 N. Y. 285 163 Salter i-., 3 Hun. (N.Y.) 338 422 D. & R. Canal Co., Black v., 22 N. J. Eq. 130 133 D. & R G. Ry. v. Harris, New Mex. , 15 Am. & Eng. R. R. Cas. 142 111 D. & S. W. R. R., Fry v., 45 Iowa 416 473 Starry v., 51 Iowa 419 436 TABLE OF CASES CITED. XXXIX D. AS. E. E.K., State v., 36 Ohio St. 436, 5 Am. & Eng. R. R. Cas. 312 155 D. & N. R. R., Zeigler v., 52 Conn. 543, 23 Am. & Eng. R. R. Cas. 400 222 Earl of Anglesea, Annesley v., 17 How St. Tr. 1139 423 Earl of Dudley, Griffiths v., 9 Q. B. D. 357 383, 410, 509 E. A. R. R., Whitaker v., 51 N. Y.295 416 East Boston Ferry Co., Le Baron v., 11 Allen 312 246, 442 Eastern R. R., Tyrrell v., Ill Mass. 546 Eaton v. B. & L. R.R., 11 Allen, 500 86, 95, 139 D. L. & W. R. R., 57 N. Y. 382 210, 445 C. H. & I. R. R. v., 94 Ind. 474, 18 Am. & Eng. R. R. Cas. 254 25, 467 v. F. R. R., 129 Mass. 364, 2 Am. & Eng. R. R. Cas. 183 162, 163 Eakin, ST. & C. R. R. v., 6 Coldw. (Tenn.) 582 409 Eames v. T. & N. O. R. R., 63 Tex. 660, 22 Am. & Eng. R. R. Cas. 540 27 Eagan «>. F. R. R., 101 Mass. 315 169 Eckert v. L. I. Rv., 43 N. Y. 502 37, 50 E. C. Ry. v. Broom, 6 Ex 314 99, 110, 112, 113 i Corman v., 4 H. & N. 78 25, 255, 257 Manser v., 3 L. T. N. S. 585 237, 238, 240 Singleton v., 7 C. B. N. S. 287, 97 E. C. L. 94, 195, 196 Skip v., 9 Ex. 223 318, 373 Stokes v., 2 F. & F. 691 238 G. N. Rv. v., 9 Hare 306 133 Eden v. L. & F. R. R., 14 B. Monr. 204 397 Edgar v. N. By., 4 Ont. (Can.) 201, 16 Am. & Eng. R. R. Cas. 347, 11 Ont. Apt). 452, 22 Am. & Eng. R. R. Cas. 433 262, 264, 266 Edgar, C. & E. Spring Co. v., 99 U.S. 645 145 Edgerton v. N. Y. C& H. R. R. R., 39 N. Y. 227 274. 286, 292, 439 Edgelev, Sly v., 6 Esp. 6 120 Edwards r. L. .V- N. W. Ry., L. R. 5 C. P. 445 110,112 Egbert, Adams Ex. Co. v., 36 Penna. St. 360 460 Egerton, Gautret v., L. R. 2 C. P. 374 177 Elirgott v. The Mayor, 96 N. Y. 264 473 Eighth Ave. R. R., Clark v., 36 N. Y. 135 290 Sandford v., 23 N. Y. 343 50, 109 Eldredge v. M. cV St. L. R. R., 32 Minn. 253, 21 Am. & Eng. R. R. Cas. 404 443 Elkins v. B. & A. R. R., 115 Mass. 190 69 Ellet v. St. L., K. C. & N. Ry., 76 Mo. 518, 12 Am. & Eng. R. R. Cas. 183 34, 277 Elliott v. St. L. & I. M. R. R., 67 Mo. 272 314 W. Ry. v., 9« III. 481, 4 Am. & Eng. R. R. Cas. 651 305, 307, 345, 364 v. Hall, 15 Q. B. D. 315 202 Ellis v. Sheffield G. C. Co., 2 E. & B. 767, 75 E. C. L. 127 v. N. Y., L. E. & W. R, R,, 95 N. Y. 546, 17 Am. & Eng. R. R. Cas. 641 303, 307, 337 v. L. &S.W. Ry., 2H.&N. 424 47 v. G. W. Ry., L. R. 9 C. P. 551 428 Elmer v. Locke, 135 Mass. 575, 15 Am. & Eng. R. R. Cas. 300 305, 337 Elv v. St. L., K. O & N. Ry., 77 Mo. 34, 16 Am. & Eng. R. R. Cas 342 32, 422 Emblen v. Myers, 6 H. & N. 54 471 Emerson v. N. N. Co., 2 Ont. (Can.) 528 110 Empire Trans. Co v. Wamsntta Oil Co., 63 Penna. St. 14 501 England, Feltham v., 7 B. & S. 676 (L. R. 1 Q. B 33); 2 Id. 33 320, 323, 324 English Joint Stock Bank, Bar- wick v., L. R. 2 Ex. 259 106 Entwistle v. Fergner, 60 Mo. 214 417 Eppendorf v. B. C. R. R., 69 N. Y. 195 291 Ernst v. H. R. R., 39 N. Y. 61 173 Erie v. Caulkins, 85 Penna. St. 247 122, 125 E. R. R., Blair v., 66 N. Y. 313 216, 502 Burrows v.. 63 N. Y. 556 103, 264 TABLE OF CASES CITED. E. R. R., Green v., 11 Hun 333 257 Harper v., 32 N. J. L. 88, 3 Vroom 88 47,264 Knowlton v., 10 Ohio St. 260 501 Lyons v., 57 N. Y. 4S9 480 McGeary v., 135 Mass. 363, 15 Am. & Eng. R. R. Cas. 407 91 Morrison v., 56 N. Y. 302 103 Nicholson v., 41 N. Y. 525 40, 177, 178 Robertson v., 22 Barb. 91 283 Warner v., 44 N. Y. 465 434 Oilman v., 10 Allen 233, 13 Id. 433 314, 356, 368 Prescott v., 113 Mass. 370 153 Harvey v., 116 Mass. 269 260, 264 Dyer v., 71 N. Y. 228 86 Norten v., 113 Mass. 366 153 Keelcy v., 47 How. Pr. 256 38 Gibson v.. 63 N. Y. 449 343, 345, 378 Warner v., 39 N. Y. 468 298, 305 Chapman v., 55 N. Y. 579 314 Morrisey v., 126 Mass. 377 196 Truax v., 4 Lansing 198 216 Pollock v., 124 Mass. 158 153 Hodgkins v., 119 Mass. 419 303 Paulmier v., 5 Vroom 151 305, 337 Porter v., 3 Vroom 261 471 Smith v., 124 Mass. 154 134 Hanlan v., 114 Mass. 34 139 Ackerson v , 3 Vroom 254 471 Conlon v., 135 Mass. 195, 15 Am. & Eng. R. R. Cas. 99 151 Dyke v., 45 N. Y. 113 497 Plumtner v., 73 Me. 591, 6 Am. & Eng. R. R. Cas. 165 169 Faulkner v., 49 Barb. 324 305 Ervin, P.& R. R. R. v., 89 Penna. St 71 42 Erwin, N. & C. R. R. v., Tenn. , 3 Am. & Eng. R. R, Cas. 465 15, 62, 286, 287 Essex Bank, Foster v., 17 Mass. 479 7 Estes, I. R. R. v., 96 111. 470 306 E. T. V. & G. R. R. v. Fain, 12 Lea (Tenn.) 35, 19 Am. & Eng. R. R. (as. 102 196 Haynes v., 3 Cold. (Tenn.) 222 355 Trollenger v., 11 Tenn. 533 251 v. Grurley, 12 Lea (Tenn.) 46, 17 Am. & Eng. R. R. Cas. 568 15, 62, 314, 366 E. T. V. & G. R. R., Collins v., 9 Heisk. (Tenn.) 841 493 v. Duffield, 12 Lea (Tenn.) 63, 18 Am. & Eng. R. R. Cas. 35 382 v. Duggan, 51 Ga. 212 416 v. Smith, 9 Lea (Tenn.) 685 307, 374 v. Stewart, 13 Lea (Tenn.) 432, 21 Am. & Eng. R. R. Cas. 614 306 v. St. John, 5 Sneed (Tenn.) 524 196 v. Toppins, 10 Lea (Tenn.) 58, 11 Am. & Eng. R. R. Cas. 222 305, 378 v. Humphreys, 12 Lea (Tenn.) 200. 15 Am. & Eng. R, R. Cas. 472 196 v. Feathers, 10 Lea (Tenn.) 103, 15 Am. & Eng. R. R. Cas. 446 160 E. T. Co., Cooper v., 75 N. Y. 116 413 Evans v. P., F. W. & C. R. R. v., 53 Penna. St. 250 457 Wray v., 80 Penna. St. 102 122 Evansich v. G. C. & S. F. R R., 57 Tex. 123, 6 Am & Eng. R. R. Cas. 182 69, 186 Everhart v. T. H. & I. R. R., 78 Ind. 292, 4 Am. & Eng. R. R. Cas. 599 212, 370, 371 Ewen v. C. & N. W. Ry., 38 Wise. 614 69, 76 Express Co. v. Kuntze, 8 Wall. 342 501 Eyles, Ravenscroft v., 2 Wils. 295 468 Eyster, W. U. T. Co. v., 91 U. S. 495, note 471 E. & C. R. R. v. Hiatt, 17 Ind. 102 37, 50 v. Duncan, 28 Ind. 441 265, 270 v. Wolf, 59 Ind. 89 76 v. Banin, 26 Ind. 70 108 E. & N. R. R., Hanson v., 62 Me. 84 114 E. & N. A. R. R., State v., 67 Me. 479 134 Brown v., 58 Me. 384 91 E. & T. H. R. R. v. McKee, 99 Ind. 519, 22 Am. & Eng. RR. Cas. 366 110 Faber v. St. P., M. & M. Ry., 29 Minn. 465, 8 Am. & Eng. R. R. Cas. 277 160 Fain, E. T. V. & G. R. R. v., 12 J. B. Lea (Tenn.) 35, 19 Am. & Eng. R. R. Cas. 102 196 TABLE OF CASES CITED. xli Fairchild t. C. S. Co., 13 Cal. 604 233 Fairrie. Wilkinson v., 1 H. & C. 633 177 Falkner v. G S. & W. Ey., 5 I. C. L. 213 2S3 Fant, Pleasants v., 22 Wall. 121 453 Fairman v Lauman, 73 Ind. 568 470 Farnum, Ballou v., 9 Allen 47 135 Farnham v. C. & A. E. E., 55 Penna. St. 62 501 Farley v. C., E. I. & P. E. E., 42 Iowa 234, 56 Id. 337, 2 Am. & Eng. E. E. Cas. 108 155 375 Farlow v. Kellv, 108 U. S. 288 274, 285 Farrell, C. & I. C. E. E. v., 31 Ind. 408 103, 253, 262, 266, 467 Faulkner, Potter v., 1 B. & S. 800, 101 E. C. L. 212, 370 v. E. Ey., 49 Barb. 324 305 Farwell v. B. & W. E. E., 4 Mete. 49, 1 Eedf. Am. Ey. Cas. 395 350, 351, 356, 359, 363, 366 Favor v. B. & L. E. E., 114 Mass. 350 152 Fawcett v. P., C. & St. L. E. E., 24 W. Va. 755, 19 Am. & Eng. E. E. Cas. 1 11, 39 Fay, C. & G. E. E. v., 16 111. 568 292 v. M. & St. L. Ey., 30 Minn. 231, 11 Am. & Eng. E. E. Cas. 193 309, 330 Feathers, E. T. V. & G. E. E. v., 10 Lea (Tenn.) 103, 15 Am. & Eng. E. E. Cas. 446 160 Felder v. L. C. & C E. E., 2 MacMullan 403 192 Feller, C. E. E. v., 84 Penna. St. 226 166, 169, 454 Feltham v. England, 7 B. & S. 676, L. E. 1 Q. B. 33. 2 Id. 33 320, 323, 324 Fenton v. City of Dublin Steam Paeket Co., 8 A. & E. 835, 35 E. C. L. 103 Fergner, Entwistle v., 60 Mo. 214 417 Ferris, Blake v., 5 N. Y. 58 122 Fessler v. Love, 43 Penna. St. 313 460 Festal v. M. E. E., 109 Mass. 720 275, 439 Ferguson v. W. C. Ey., 63 Wise. 145, 19 Am. & En?. E. K, Cas. 285 166, 173, 444 v. V. & T. E. E., 13 Nev. 184 155 Ferguson v. C. I. Ey., 58 Iowa 293, 5 Am. & Eng. E. E. Cas. 614 374 376, Field, Huzzey v., 2 C. M. & E. 432 106 Fielding. Oakland Ey. v., 48 Penna. St. 320 68, 148, ?50 Fifield v. N. E. E., 42 N. H. 225 305, 344 Filbern, L. & N. E. E. v., 6 Bush. (Kv.) 574 54 Filer v. JJ. Y. C. & H. E. E. E., 49 N. Y. 47, 59 Id. 351 18, 103, 264, 287,473 Fillmore, C. & N. E. E. v., 57 111. 265 253, 416 Fillibrowne v. G. T. Ev., 55 Me. 462 501 Finch, Walden v., 70 Penna. St. 400 201 Finney, M. & M. E. E. v., 10 Wise. 388 108, 416 v. N. P. Ev., Dak. , 12 Am. & Eng. E. E. Cas. 17 454 Findlay, A. V. E. E. v.. 4 Weekly Notes of Cases (Penna.) 438 224 Finlavson, S. C. & P. Ev. v., 16 Neb. 272, 18 Am. '& Eng. E. E. Cas. 68 306, 382, 424 Fitchburg E. E., Bucher v., 151 Mass. 156, 6 Am. & Eng. E E. Cas. 212 65 Fitzgerald v. St. P., M. & M. E. E., 29 Minn. 336, 8 Am. & Eng. E. E. Cas. 310 28, 42, 91, 193 Fitzpatrick v. N. A. & S. E. E., 7 Ind. -J36 367 v. G. W. Ey., 12 Up. Can. (Q. B.) 645 29, 292 L. M. E. E. v., 42 Ohio St. 318, 17 Am. & Eng. E. E. Cas. 578 309,310,335,367 L. S. & M. S. E. E. v., 31 < Ohio St. 479 305 Fitzsimmons, K. C. Ry.w.,18 Kans. 34, 22 Id. 686," 15 Am. Ev. Eep. 220 122, 186 F. I. Co., Carleton v., 99 Mass. 216 201 Fisher, Creed v., 9 Ex. 472 470 Fitts v. C. C. Ey., 59 W T isc. 325, 15 Am. (fe Eng. E. E. Cas. 462 454 Fix, L. E & W. Ev. v., 88 Ind. 381, 11 Am. & Eng. E. E. Cas. 109 25,467 Flagg, C. & A. E. E. v., 43 111. 364 108, 251 xlii TABLE OF CASES CITED. Flagler, Brownell v., 5 Hill 282 50 Flanders v. Meath 27 Cra. 858 74 Flanigan, I., B. &W.JEL. E. v., 77 111. 3(55 302, 303 Flanagan u. C. & N. W. Ey., 45 Wise. 98, 50 Id. 462, 2 Am. & Eng. E. E. Cas. 150 302, 307, 345 Flexman, C. & E. E. E. v., 103 111. 546, 8 Am. & Eng. E. E. Cas. 354 114 Fleming, L. & N. E. E. v., 14 Lea (Tenn.) 128, 18 Am. & Eng. E. E. Cas. 347 25, 60, 250, 466 Fleck v. U. Ev., 134 Mass. 480, 16 Am. & Eng. E. E. Cas. 372 290 Flemming v. St. P. & D. E. E., 27 Minn. Ill 344 Fletcher v. Braddick, 5 Bos. & Pul. 182 103 Bylands v., 3 H. & C. 774, L. E. 1 Ex. 265, L. E. 3 II. L. 330 145 v. Tayleur, 17 C. B. 21, 84 E. C. L. 460 Flinn, A. T. & S. F. E. E. v., 24 Ivans. 627, 1 Am. & Eng. E. E. Cas. 240 35, 72 v. P., W. & B. E. E., 1 Houston (Del.) 469 205, 233 Flint v. N. & N. Y. T. Co., 34 Conn. 554 281 i>. N. & VV. E. E., 110 Mass. 222 152 Flower v. P. E. E., 69 Penna. St. 210 74, 115, 188, 196, 288,370,371 Flike v. B. & A. E. E., 53 N. Y. 549 317, 322, 330 Fleytas v. P. E. E.. 18 La. An. O S. 339 192 Flynn, K. C. St. J. & C. B. Ey. v., 78 Mo. 195, 18 Am. & Eng. E. E. Cas. 23 306, 382, 436, 444 F. L. & T. Co., Seaman v., 15 Wise. 578 489 Foley v. C. & N. W. Ey., 48 Mich. 622, 6 Am. & Eng. E. E. Cas. 161 344 Foord, Smead v., 1 El. & EL 602, 102 E. C. L. 460 Ford v. L. & S. W. Ey., 2 F. & F. 730 165, 246 v. C. I. E. E., Iowa , 1 7 Am. & Eng. E. E. Cas. 599 434 V. F. E. E., 110 Mass. 241 306, 329, 369, 382 Fordham v. B. & S. C. Ey., L. E. 3 C.-P. 368, 4 Id. 619 277 Forsdike v. Stone, L. E. 3 C. P. 607 476 Forrester, Butterheld v., 11 East 60 45, 47, 51 Fort, U. P. E. E. v., 17 Wall. 553 339, 350, 370 Forsyth v. B. & A. E. E., 103 Mass. 510 253, 254, 259 Forsythe, McCall v., 4 W. & S. 179 390, 394 Foster v Juniata Bridge Co., 16 Penna. St. 393 31 v. Fowler, 60 Penna. St. 27 4 v. Essex Bank, 17 Mass. 479 7 Pittsburg Coal Co. v., 59 Penna. St. 365 460 N. C. & St. L. Ey. v., Tenn. , 11 Am. & Eng. E. E. Cas. 180 335, 367 v. C & A. E. E., 84 111. 164 376 Foulkes v. M. Ey., 4 C.P. D. 267, 5 Id. 157 217, 218. 266, 269, 390 Fowler, H. & T. C. E. E. v., 56 Tex. 452, 8 Am. & Eng. E. E. Cas. 504. 32 Foster v., 60 Penna. St. 27 4 v. Locke, L. E. 7 C. P. 272, 9 Id. 751 n. 232 Priestley v., 3 M. & W. 1 296, 344, 350 v. B. & O. E. E., 18 W. Va. 579, 8 Am. & Eng. E. E. Cas. 480 180 v. C. & N. W. Ey., 61 Wise. 169, 17 Am. & Eng. E. E. Cas. 536 346 Fox, Wiggett v., 11 Ex. 832 342, 356 Knight v., 5 Ex. 721 122 H. & St. J. E. E. v., 31 Kans. 587, 15 Am. &Eng. E. E. Cas. 325 370 Foy v. L. B. & S. C. Ev., 18 C. B. N. S. 225, 114 E. C. L. 266 v. P. W. & B. E. E., 47 Md. 76 163 Fortescue, Batchelor v., 11 Q. B. D. 474 177 Fortnev, P. E. E. v., 90 Penna. St. 323, 1 Am. & Eng. E. E. Cas. 129 174, 441. 454 Foss v. C. M. & St. P. E. E., 33 Minn. 392, 19 Am. & Eng. E. E. Cas. 113 224 Foxlev, C. P. Ey. v., 107 Penna. St. 537 454 TABLE OF CASES CITED. xliii Fraker v. St. P., M. & M. Ey., 32 Minn. 54, 15 Am & Eng. R. R. Cas. 256. 323, 346, 368, 369 France, White v., L. R. 2 C. P. D. 308 200 Francis v. Cockrell, L. R. 5 Q. B. 184, 501 200, 201, 237 v. St. L. T. Co., 5 Mo. App. Cas. 7 25, 466 Frandsen v. C, R. I. & P. R. R., 36 Iowa 372 383 Franklin v. S. E. Ry., 3 H. & N. 211 487 Fray, U. P. Ry. v., 31 Kans. 739, 15 Am. & Eng. R. R. Cas. 158 378 Frazier v. P. R. R., 38 Penna. St. 104 313 314, 330, 356, 366, 373 Fredericks, T. W. & W. R. R. v., 71 111. 294 301 Freemantle v. L. & N. W. Ry., 10 C. B. N. S. 95, 100 E. C. L. 246, 247 Freeman, Overton v., 11 C. B. 867, 73 E C. L. 122 Freeman, St. L., I. M. & S. Ry. v., 36 Ark. 41, 4 Am. & Eng. R. R. Cas. 608 91, 482 Freeman v. M. & St. L. Ry., 28 Minn 443, 7 Am. & Eng. R. R. Cas. 410 133 Frelka, I. C. R. R. v., 110 111. 498, 18 Am. & Eng. R. R. Cas. 7 222, 470 French, Brown v., 14 Weekly Notesof Cases (Penna.)412 112 Frey, Stockton v., 4 Gill 406 233 Frick v. St. L., K. C. & N. R. R., 75 Mo. 595, 8 Am. & Eng. R. R. Cas. 280 77, 91, 1-57, 159, 167, 196,482 Fricsch v. Allegheny, 91 Penna. St. 226 6 F. R. R., Holden v., 129 Mass. 268, 2 Am. & Eng. R. R. Cas. 94 306,363,367 Eaton v., 129 Mass. 364, 2 Am. & Eng. R. R. Cas. 183 162,163 Ford v., 110 Mass. 241 306, :'.29, 369,382 Moore v., 4 Gray 465 108 Snow v., 136 Mass. 552, 18 Am. & Eng. R. R. Cas. 161 102,255 White*., 136 Mass. 321, 18 Am. & Eng. R. R. Cas. 140 139, 233, 275 F. R. R., Warren v., 8 Allen 227 139,213,233, 257,2*7,436, 502 Titcomb ... 12 Allen 254 149 Tully v., 134 Mass. 499, 21 Am. & Eng. R. R. Cas. 682 169,425,429 Eagan v., 101 Mass. 315 169 v. Paue, 131 Mass. 391, 7 Am. & Ens?. R. R. Cas. 86 180 F. Ry.. Jones v., L. R. 3 Q. B. 733 145 Frost v. G. T. R. R.,10 Allen 387 103, 270 Grizzle v., 3 F. & F. 622 320 Frederick, W. R. R. v., 71 111. 294 307 Fry, Clark v., 8 Ohio St. 358 122 127 v. D. & S. W. Ry., 45 Iowa 416 473 Fries v. Cameron, 4 Richardson 228 201 Friedman v. R. R , 7 Phila. 203 417 F. S. & P. V. Ry. v. Gibson, 96 Penna. St. 83 442 F. S. St. R. R., Ihl v., 47 N. Y. 317 70, 482, 489 F, S. & G. St. F. R. R. v. Haves, 97 N. T. 259, 21 Am. & Eng. R. R. Cas. 358 _ 291 Fuess, School District of Erie v., 98 Penna. St. 600 122 Fuller v. Jewett, 80 N. Y. 46 300, 306, 329, 369 v. N.RE, 21 Conn. 557 263, 481 Fullerton, M. S. J". & A. R. R. v., 14 C. B. N. S. 54, 108 E. C. L. 151, 153 Furness Ey., McCawley v., L. R. 8 Q. B. 57 499 Furst v. S. A. R. R., 72 N. Y. 542 416 Funston v. C, R. I. & P. Ry., 61 [owa 452, 14 Am. & Eng. R. R. Cas. 640 166, 169 F. W. J. & S. Ry. r. Gildersleeve, 33 Mich. 133 303 F. & A. St. P. Ry. Co. v. Stutler, 54 Penna. St. 375 392, 413 F. & B. Turnpike Co. v. P. & T. R. R., 54 Penn. St. 345 6, 146, 246 F. & P. M. By.v. Weir, 37 Mich. Ill 208 Gilbert v., 51 Mich 488 152 Lewi-< v.,54 .Mich. 55, IS Am. &En ? . E. R. Cas. 263 25, 466 0.WiIley,47 Mich. 88,5 Am. & Eng. R. R. Cas. 305 156 xliv TABLE OF CASES CITED. F. & P. Rv , Glassey v., 57 Penna. St. 172 76 F. & W. R. R., Robinson v., 7 Gray 92 434 Gahagan o.B.& L.R. R.,1 Allen 187 283 Gale n. N. Y. C. & II. R. R. R., 70 N. Y. 594 470 Galena v. H. S. R. R., 13 Fed. Rep. 116 114 Galentine, Penna. Co. v., 77 Ind. 320, 7 Am. & Eng. R. R. Cas. 517 436 Gallagher, Haves v., 72 Penna. St. 136 ' 148 v. Piper, 16 C. B. N S. 669, 111 E. C. L. 3-23,333,434 W. P. P. Ry. v., 16 Weekly Notes of Cases (Penna.) 413 68, 291 v. Humphrey, 6 L. T. N. S. 684 178 Penna. Co. v., 40 Ohio S.. 637, 15 Am. & Eng. R. R. Cas. 341 222 Galliard v. L. & Y. Ry., 12 L. T. 356 486, 491 Gallin v. L. & N. W. Ry., L. R. 10 Q. B. 212 500 Gannon v. H. R. R., 112 Mass. 234 372 Gardiner, Birge v., 19 Conn. 507 91 Dengate v., 4 M. & W. 6 481 Gardner v. N. II. & N. R. R., 51 Conn. 143, 18 Am. & Eng. R. R. Cas. 170 18S, '208, 209 v. L. C. & D. Ry., L. R. 2 Ch. 201 • 132, 134 Gautret v. Egerton, L. R. 2 C. P. 374 177 Gasway v. A. & W. P. Ry., 58 Ga. 216 113, 114 Gas Lischt Co., Buesching v., 73 Mo. 229 436, 444 Gates v. S. M. R. R., 28 Minn. 110, 2 Am. & Eng. R. R. Cas. 237 31, 32, 300, 302, 303, 305 Gavett v. M. & L. R. R., 16 Gray 501 63, 265 Gay, Ware v., 11 Pick. 106 439 GaVnor v. O. C. & N. R. R , 100 .Mn.s. 208 17:;, 257, 266 Garcia, T. & P. Rv. v., 62 Tex. 285, 21 Am. & Eng. R. R. Cas. 384 205,210 Gartkmd v T. W. & W. Rv., 67 1)1. 498 338 Garvey, C. & A. R. R. v., 58 111. 83 166 G. A. Rv., Stein v., 10 Phila. 440 418 Galloway v. W. & A. R, R., 57 Ga. 512 510 G. C. & S. F. R. R., Evansich v., 57 Tex. 123, 6 Am. & Eng. R. R. Cas. 182 69, 186 Dallas v., 61 Tex. 196, 21 Am. & Eng. R. R. Cas. 575 368 Geary, C. & E. I. R. R. v., 110 111. 383, 18 Am. & Eng. R. R. Cas. 606 317, 368, 373 Gee v. Metropolitan Rv., L. R 8 Q. B. 161 i5, 63, 279, 280 v. L. & Y. Ry., 6 H. & N. 211 m 460, 462 Geese v, Stiles v., 71 Penna. St. 439 55, 60 Geddes v. M. R. R., 103 Mass. 391 282 George, C B. & Q. R. R. v., 19 111. 510 275, 439 v. St. L., I. M. & S. R. R., 34 Ark. 613, 1 Am. & Eng. R. R. Cas. 294 240, 275, 439, 503 v. Skivington, L. R. 5 Ex. 1 412 Gerard v. P. R. R., 12 Phila. 394, 5 Weekly Notes of Cases (Penna.) 251 229 G. E. Rv., Berringer v., 4 C. P. D. 163 393 Pulling »., 9 Q. B.D.I 10 398 Read v., L. R. 2 Q. B. 555 410, 509 Richardson v., L. R. 10 C. P. 486, 1 C. P. D. 342 238, 240, 309 Smith v., L. R. 2 C. P. 54 259 Gerety v. P. W. & B. R. R., 81 Penna. St. 274 88, 169 Geveke v. G. R. & I. Rv., Mich. , 22 Am. & Eng. R. R. Cas. 551 151, 154, 474 G. H. & S. A. R. R. v. Bracken, 57 Tex. 71, 14 Am. & Eng. R. R. Cas. 691 168 Burton v., 61 Tex. 526, 21 Am. & Eng. R. R. Cas. 218 123 v. Delahunty, 53 Tex. 206, 4 Am. & Eng. R. R. Cas. 628 306 v. Donahue, 56 Tex. 162, 9 Am. & Eng. R. R. Cas. 287 112 Hamilton v., 54 Tex. 550. 4 Am. & Eng. R. R. Cas. 528 341 TABLE OF CASES CITED. xlv G. H. & S. A. E. E., v. Le Gierse, 51 Tex. 189 63, 264 v. Leinpe. 59 Tex. 19, 11 Am. & Eng. E. B. Cas. 201 349 v. Davidson. 61 Tex. 204, 21 Am. & Eng. E. E. Cas. 431 277 Gibbs, Mersey Docks Trustees »., 3 H. & N. 164, 11 H. L. C. 686, L. E. 1 H. L. 93 7,129,200,201,237,329 Giblin v. McMullen, L. E. 2 P. C. 335 454 Gibson v. Midland Ey., 2 Ont. (Can.) 653 302, 345, 492 v. St. L., K. C. & N. Ey., 8 Mo. App. 488 151 F. B. & P. V. Ey. v., 96 Penna. St. 83 442 v. E. Ey., 63 N. Y. 449 343, 345, 378 v. N. C. Ev., 22 Hun 289 335, 367 Gidlow, Griffiths v., 3H.&N. 648 373 Giles v. T. V. Ey., 2 El. & Bl. 822, 75 E. C."L. 445 Gill v. M. S. & L. Ev., L. E. 8 Q. B. 186 217 Gilleland, P., F. W. & C. Ev. v., 56 Penna. St. 445 31, 32 Gilshannon v. S. B. E. E,, 10 Cush. 228 211 356,368 Gillis v. P. E. E., 59 Penna. St. 139 177 Gilson v. J. C. H. Ey, 76 Mo. 282, 12 Am. & Eng. E. E. Cas. 132 235 Ardesco Oil Co. v., 63 Penna. St. 146 122, 305 Gilmore, Beatty v., 16 Penna. St. 463 148 v. N. P. Ey., 18 Fed. Eep. 866, 15 Am. & Eng. E. E. Cas. 304 323,329,369 Oilman v. E. E. E., 10 Allen 233, 13 Id. 433 314, 356, 368 Gilbert, M. C. E. E. v., 46 Mich. IT'l, 2 Am. & Eng. R. E. Cas. 230 314 v. F. & P. M. Ev., 51 Mich. 488 152 I. .V G. N. R. R. v., 64 Tex. 536, 22 Am. & Eng. E. E. Cas. 405 467 Gi'lenv -iter v. M.& I. Ey., 5 Ind. 339 208 Gildersleeve, F. W. J. & S. Ey. v., 33 Mich. 1 33 303 Gillespie v. McGowan, 100 Penna. St. 144 183, 196 PAGE Ginna v. S. A. E. R., 67 1S.Y. 596 291 Ginther, McLeed i>., 80 Ky. 399, 8 Am. & Eng. K. K. Cas. 162, 15 Id. 291 317,355,416 Gillett, Osborn v., L. E, 8 Ex. 88 397 G. I. P. Ey., Martin v., L. E. 3 Ex. 9 217 Gilliam v. S. & N. A. E, E„ 70 Ala. 268, 15 Am. & Eng. E. E. Cas. 138 115 G. J. Ey., Bridge v, 3 M. & W. 244 45, 47, 51, 78, 86 Gladmon, W. & G. Ey. v., 15 Wall. 401 67, 68, 436 Glandine, Heil v., 42 Penna. St. 493 47, 56, 60 Glassev v. F. & P. Ev., 57 Penna. St. 172 76 Gleason, C. R. E. v , 69 Ga. 200 60 v. Bremen, 50 Me. 222 436 Glushing v. Sharp, 96 N. Y. 676, 19 Am. & Eng. E. E. Cas. 372 164 G. Mfg. Co., Gunter v., 18 S. C. 262 329 G. N. Ev., Duff v., 4 Irish Law Eep. 178 501 Goff v., 3 E. & E. 672, 107 E. C. L. 445 Hamlin v., 1 H. & N. 408 460 v. Hanson, 10 Ex. 376 206,390 Harrison v., 3 H. & C. 231 39, 95 Leggott v., 1 Q. B. D. 599 401 Martin v., 16 C. B. 179, 81 E. C. L. 48, 254 Pymr.,2B. &S.750, HOE. C. L. ; 4 B. & S. 396, 116 E. C. L. 87, 482 Taylor v., L. E. 1 C. P. 385 39, 140 v. E. C. Ev., 9 Hare 306 133 Goddard, H. W. R. E. v., 25 Ind. 185 86, 157 v. G. T. Ey., 57 Me. 202 114, 471 Godlev, Carson v., 26 Penna. St. "ill 200 v. Haggerty, 20 Penna. St. 387 200 Godding, Hamilton v., 55 Me. 428 65 Godfrey, I. C. E. E. v., 71 111. 500 177, 190, 197 Goff v. G. N. Ev., 3 E. & E. 672, 107 E. C. L. 445 Goldstein v. C, M. & St. P. Ey., 46 Wise. 404 224 Goodchild, Eowning v., 2 W. Bl. 906 40 Goldev v. P. R. E., 30 Penna. St. "242 205 xlvi TABLE OF CASES CITED. Goodman v. KennelL 3 C. & P. 167, 14 E. C. L. 99 Goldthorpe v. Hardman, 13 M.& W. 'Ml 148 Goodwin, Illidge v., 5 C. & P. 190, 2 l E. C. L. 39, 95, 148 v. C, R. L& P. K. R„ 75 Mo. 73, 1 1 Am. & Eng. R. R. Cas. 469 158 Gorbett, H. & T. C. Rv. v., 49 Tex. 573 47, 60 Gordon v. G. St. & N. R. R., 40 Barb. 546 213 v. B. & M. R. R., 58 M . H. 396 421 v. Rolt, 4 Ex. 364 386, 388 Gormiey v, O. & M. Ry., 72 Ind. 31, 5 Am. & Eng. R R. Cas. 531 368 Gorris v. Scott, L. R. 9 Exch. 1 25 42 Gould v. McKeuna, 86 Penna. St. 297 31, 47 v. C. B. & Q. R. R., 66 Iowa 590 22 Am. & Eng. R. R. Cas. 2S9 308 Gonzales v. N. Y. & H. R. R. R., 50 How. Pr. 126 265 Gothard v. A. G. S. R. R., 67 Ala. 114 60,171 Gottleib v. N. Y., L. E. & W. R. R., 29 Hun (N. Y.) 637, 100N.Y. 462 309,311 Goodfellow i>. B, H. & E. R. R., 106 Mass. 461 179 Goodman, P. R. R. v., 62 Penna. St. 329 157, 481, 490 Goetz, L., C. & L. R. R. v., 79 Ky. 442, 14 Am. & Eng. R. R. Cas. 627 159 G. P. Rv- v. Brophy, 105 Penna. St. 38, 16 Am. & Eng. R. R. Cas. 361 285 v. Walling, 97 Penna. St. 55, 2 Am. & Eng. R. R. Cas. 20 290, 454 Grabel, T., W. & W. Ry. v., 88 111. 441 91 Gradin v. St, P. & D. Ry., 30 Minn. 217, 11 Am. & Eng. R. R. Cas. 644 209 Grabam, Davidson v., 2 Ohio St. 131 501 v. Davis, 4 Ohio St. 362 501 v. N. E. Ry., 18 C. B. N. S. 229, 114 E. C. L. 221,308,372 v. Pacific R. R., 66 Mo. 536 501 P. & O. Canal Co. v., 63 Penna. St. 290 148, 149, 473 T. H. & I. R. R v., 95 Ind. 286, 12 Am. & Eng. R. R. Cas. 77 ' 191, 193 C raliam v. G. W. Ry., 41 Up. Can. (Q. B.) 324 240 Gramlich u. Wurst, 86 Penna. St. 7 1 183, 196 Gray, H., M. & F. Ry. v., 3 Weekly Notes of Cases (Penna.) 421 68 v. P. & R. R. R. (U. S. C. C. N. D. N. Y.), 22 Am. & Eng. R. R. Cas. 351 86 v. Scott, 66 Penna. St. 345 68 Sharp v., 9 Bing. 457, 23 E. C. L. 232 Green v. London Gen'l Omnibus Co., 7 C. B. N. S. 290, 97 E. C. L. 99, 107 v. E. Ry., 11 Hun 333 257 M. & C. R. R. v., 52 Miss. 779 460 P. P. Ry. v., 56 Md. 84, 6 Am. & Eng. R. R. Cas. 168 212, 371 I. C. R. R. v., 81 111. 19 283 v. II. R. R. R., 2 Keyes (N. Y.) 294 398 Green Bay Co., McArthur v., 34 Wise. 139 65 Greene, L. & N. R. R. v., Ky. , 19 Am. & Eng. R. R. Cas. 95 192, 196 v.M.& St. L. Ry., 31 Minn. 248, 15 Am. & Eng. R. R. Cas. 214 306 Greenland v. Chaplin, 5 Ex. 243 12,82 Greenwood, Seymour v., 7 H. & N. 354 107, 108 Greenwald v. M., H. & O. R. R., 49 Mich. 197, 8 Am. & Eng. R. R. Cas. 133 338, 364, 367 Greany v. L. I. R. R., 101 N. Y. 419 427 Greenleaf v. I. C. R. R., 29 Iowa 14 373 v. D. & S. C. R. R., 33 Iowa 52 373 Gregory, C. & A. R. R. v., 58 111. 226 69 C. B. & Q. R R. v., 58 111. 272 308 v. Piper, 9 B.&C.591, 17 E. C. L. 386, 387 Grethen v. C. M. & St. P. R. R., U. S. C. C. District of Minn., 19 Am. & Eng. R. R. Cas. 342 94, 192 Gretzner, C. & A. R. R. v., 46 111. 76 54, 427 Greer, Pittsburg v., 22 Penna. St. 54 39, 390 TABLE OF CASES CITED. xrvii Grier v. Sampson, 27 Penna St. 183 148 Griffen v. Colver, 16 N. Y. 489 460 Griffiths y. Earl of Dudley, 9 Q. B. D. 357 383, 410, 509 v. Gidlow, 3 H. & N. 648 373 v. L. & St. K. Docks Co., 12 Q. B. D. 493, 13 Id. 259 344 Griffin, W. & T. P. R. P. v., 57 Penna. St. 417 135 Grizzle v. Frost, 3 F. & F. 622 320 Griggs, Christie v., 2 Camp. 79 232 439 _ v. Houston, 104 U. S. 553 ' 293 Grill v. Iron Screw C. Co., L. R. 1 C. P. 612 6, 8 Grote v. C. & H. Ry., 2 Ex. 251 217, 236, 237, 240 G. R. & I. Ry. v. Showers, 71 Ind. 451, 2 Am. & Eng. R. R. Cas 9 342 v. Huntley, 38 Mich. 537 237, 276, 417, 426 v. Boyd, 65 Ind. 526 235, 240 Geveke v., Mich. , 22 Am. & Eng. R. R. Cas. 551 151, 154, 474 G. R. R., Wright v., 34 Ga. 337 447 v. Thomas, 68 Ga. 744 151 v. Newsome. 60 Ga. 492, 66 Id. 57 151, 416 Baston v., 60 Ga. 340 190 v. Rhodes, 56 Ga. 645 15, 62, 376 Grush, T. W. & W. R. R. v., 67 111. 262 254 Grant, Twycross v., 4 C. P. D. 40 398 G. R. R. & B. Co. v. McCurdy, 45 Ga. 288 286, 2S7 v. Oaks, 52 Ga. 410 375 G. R. & I. R. R., Haas v., 47 Mich. 401, 8 Am. & Eng. R. R. Cas. 268 163, 169, 171 Gruber v. W. & J. R. R.. 92 N. C. 1, 21 Am.&Eng.R. R. Cas. 438 43, 136, 275 Griswoldu. C. & N. W. Ry., Whc. , 23 Am. & Eng. R.R. Cas. 463 220 Grows v. M. ('. R. K,, 67 Me. 100 171 G. S. Navigation Co.. Dowel! v., 5 E.& B. 195,85 E. C. L. 52, 54 G.S. & V,'. By., Nichollsr., 7 Ir. C. L. 40 262 Falkner v., 5 I. C. L. 213 283 G. St. &, N. R. R., Gordon v., 40 Mark 546 213 G. St. R. R. v. Hanlon, 53 Ala. 70 91 G. S. & W. Rv., Condon v , 16 Irish C. L. 415 489 G. T. Rv., Bennett v., 3 Ont. C. P. D. 446, 13 Am. & Eng. R. R. Cas. 627 160, 161 v. Cummings, 106 U. S. 700 337 Dunn v., 58 Me. 187 210, 233, 286, 292 Fillibrowne v., 55 Me. 462 501 Holyoke v., 48 N. H. 541 421 Frost v., 10 Allen 387 103, 270 Goddard v., 57 Me. 202 114, 471 v. Stevens, 95 U. S. 655 4, 205, 501, 503 Taylor v., 48 N. H. 229, 304 233, 418, 472 Torpy v., 20 Up. Can. (Q. B.) 446 211 "Williamson v., 17 Up. Can. (C. P.) 615 . 25 Vars v., 23 Up. Can. (C. P.; 143 152 Paine v., 58 N. H. 611 156 Stott v., 24 Up. Can. (C. P.) 347 15 l Worthen v., 125 Mass. 99 282 State v., 58 Me. 176 214, 436 Jewell v., 55 N. H. 84 103, 370, 371 Jones v., 45 Up. Can. (Q. B.) 193 38 Klanowski v., Mich. , 21 Am. & Eng. R. R. Cas. 648 159, 427 Needham v., 38 Vt. 294 486 Peart v., 10 Ont. Ap. 191, 19 Am. & Eng. R. R. Cas. 239 160 Rosenberger v., 8 Ont. Ap. 482, 15 Am. & Eng. R. R. Cas. 448, 9 S. C. of Can. 311, 19 Am. & Eng. R. R. Cas. 8 160, 161 Gudger v. W. N. C. R. R., 87 N. C. 325 150 Guinan, L. N. & G. S. R. R. v., 11 Lea(Tenn.)98 471 Gumz v. C. M & St. P. Ry , 52 Wise. 672, 5 Am. & En;?. R. R. Cas. 583 1 2, 383 Gunter v. G. Mfg. Co., 18 S. C. 262 329 Oust, Hill v., 55 Ind. 45 338 Guthrie v. L. & N. R. R., 1 1 Lea (Tenn.) 372, 15 Am & Eng. R. R. Cas. 209 307 Gnrlev, E. T. V. & G. R. R. v., 12 Lea (Tenn.) 46, 17 & Ent;-. R. R. ( 'as. 568 15, 62,31 :, 366 xlviii TABLE OF CASES CITED. Guggenheim v. L. S. & M. S. Ry., Mich. , 22 Am. &Eng. R. R. Cas. 546 163, 447 Gullett. ( ). & M. R. R. v., 15 Ind. 487 256 G. W. Ry., Bird v., 28 L. J. Ex. 3 439 v. Blake, 7 II. & 1ST. 037 138 Bradburn v., L. R. 10 Ex. 1 474, 494 v. Braid, 1 Moo. P. C. N. S. 101, 9 Jur. N. S. 339 31, 32, 240, 440 Brown v., 40 Up. Can. Q. B. 333, 2 Ont. Ap. Cas. 64, 3 Can. S. C. 159 221 Hay v., 37 Up. Can. (Q. B.) 456 2S3 Burgess v., 6 C. B. K S. 923, 95 E. C. L 253 Haldan v., 30 Up. Can. (C. P.) 89 265 Austin v., L. E. 2 Q. B. 442 205, 390 Fitzpatrick v., 12 Up. Can. (Q. B.) 645 29, 292 Purnell v. (mentioned by Hellish L. J., in 2 C. P. D. 210) 103 Siner v., L. R. 3 Ex. 150, 4 Id. 117 18, 21, 63, 270 Sutherland v., 7 Up. Can. (C. P.) 409 502 Williams v., L. R. 9 Ex. 157 28,41 Woodger v., L. R. 2 C. P. 318 462 Wvatt v., 6 B. & S. 709, 118 E. C L. 34 L. J. (Q. B.) 204 20, 21, 37, 54, 63 Watkins v., 37 L. T. N. S. 193 259 James v., L. R. 2 C. P. 634, note 165 Longmore v., 19 C. B. N. S. 183, 115 E C. L. 253 Nicholls v., 27 Up. Can. (Q. B.) 382 86 v. Redmavne, L. R. 1 C. P. 329 * 460, 461 Graham v., 41 Up. Can. (Q. B.) 324 240 Ellis v., L. R. 9 0. P. 551 423 G. W. R, R., Hawkins »., 17 Mich. 57, 18 Id. 427 502 v. Miller, 19 Mich. 305 108 G. W. Cotton Co., Britten v., L. R. 7 Ex. 130 41, 304 G. W. & S. Rv , Johnson v., 9 Irish Rep., C. L. 108 502 G. & C, St. P. By. r. Bresmer, 97 Penna. St. 103 349, 373 G. & C. U. R. R. v. Jacobs, 20 111. 478 60 G. & C. R. R. R. v. Dill, 22 111. 264 157 Haas v. G. R. & I. R. R, 47 Midi. 401, 8 Am. & Eng. R.R. Cas. 268 163, 169, 171 Hacket, Little v., 116 U. S. 366 103 Hadlev v. Baxendale, 9 Ex. 341 460 v. "Taylor, L. R. 1 C. P. 53 148 Hall, I., B. & W. R. R. v., 106 111. 371, 12 Am. & Eng. R. R. Cas. 146 277 I. C. R. R. v., 72 HI. 222 190 v. Johnson, 3 H. & C. 589 356 L. V. R. R. v., 61 Penna. St. 361 174, 441, 444 v. M. P. Ry., 74 Mo. 298, 8 Am. & Eng. R. R. Cas. 106 329, 369 v. N E. Ry., L. R. 10 Q. B. 437 500, 502 Elliott v., 15 Q. B. D. 315 202 v. Smith, 2 Bing. 156 122 v. N. J. S. N. Co., 15 Conn. 539 502 v. U. P. Ry., 16 Fed. Rep. 744 308 Hagan, P. & T. R. R. v., 47 Penna. St. 244 163, 174 Hagertv, Godley v., 20 Penna. St. 387 200 Hahn v. S. P. Ry., 51 Cal. 605 152 Haynes, Adams Ex. Co. v., 42 111. 89 502 Haldan v. G. W. Ry., 30 Up. Can. (C. P.) 89 265 Haley, M. P. Rv. v., 25 Kans. 35, 5 Am. & Eng. R. R. Cas. 594 299, 319, 383 Halloren, I. & G. N. R. R. v., 53 Tex. 46, 3 Am. & Eng. R. R. Cas. 343 ^ 31, 32, 233, 240, 246 Halm, ArSour v., Ill U. S. 313 356 Halli'day, Longmeid v., 6 Ex. • 731 412 Haley v. C. & N. W. R. R., 21 Iowa 15 26 Hallihan v. H. & St. J. R. R., 71 Mo. 113, 2 Am. & Eng. R. R. Cas. 117 35, 283, 299, 344, 374 Haigh, Marsdon v., 14 Weekly Notes of Cases (Penna.) 526 373 Hamlin v. G. N. Ry., 1 H. & N. 408 460 TABLE OF CASES CITED. xlix Hamilton v. D. M. V. Ey., 36 Iowi St. 31 346 v. Godding, 55 Me. 428 65 v. McPherson, 28 N. Y. 72 460 v. Third Ave. E. E., 53 N. Y. 25 471 v. N. Y. C. E. E., 51 N. Y. 100 416 v, G. H. & S. A. Ey., 54 Tex. 556, 4 Am. & Eng. E. E. Cas. 528 341 v. T. & P. Ey., 64 Tex. 251, 21 Am. & "Eng. E. E. Cas. 336 220 Hammersley, O. & M. E. E. v., 28 Ind. 371 76, 418 Hampton, H. & T. C. Ey. v., 64 Tex. 427, 22 Am. & Eng. E. E. Cas. 291 216, 376 Hanlan v. E. E. E., 114 Mass. 44 139 Hagenlocker v. C. I. & B. E. E., 99 N. Y. 136 417 Hammack v. White, 11 C. B. K S. 588, 103 E. C. L. 35, 434 Hammond v. N. E. Ey., 6 S. C. 130 216 Hanning, N. O., M. & C. E. E. v., 15 Wall. 649 123, 201 Hanlon, G. St. E. E. v., 53 Ala. 70 91 Hand, Simpson v., 6 Wh. 311 47, 81, 86 U. P. E. E. v., 7 Kans. 392 233 Hardisty, Wheelton v., 8 E. & Bl. 232, 92 E. C. L. 454 Hard v. C. Ey., 32 Vt. 473 366 Hardcastle v. S. Y. Ey., 4 H. & N. 67 183 Hardy v. N. C. C. E. E., 74 N. C. 734 303 Hanson v. E. & N. E. E., 62 Me. 84 114 Hankey, Penna Co. v., 93 111. 580 302, 376 Hanrathy v. N. C. Ey., 46 Md. 280 307 Hand v. V. & C. E. E., 32 Vt. 473 356 Hardin, T. & P. E. E. v., 62 Tex. 367, 21 Am. & Eng. E. E. Cas. 460 240 Harmon, T. W. & W. Ey. v., 47 111. 298 151 Haring, N. Y., L. E. & W. E. E. v., 47 N. J. L. 137, 21 Am. & Eng. E. E. Cas. 436 43 Harlan v. St. L., K. C. & N. E. E., 61 Mo. 480, 65 Mo. 22 55, 190 Hardingham, Coupland v., 3 Camp. 398 148 Hardman, GolcUhorpe v., 13 M & W. 377 148 Hart v. Allen, 2 Watts 116 9 v. C, E. I. & P. Ey., 56 Iowa 166 161 Hartfield v. Eoper, 21 Wend. 6l5 91 Hartnall v. Byde Commrs., 4 B. &S. 361, 116 E. C. L. 200 Hartwig v. C. & N. W. Ey., 49 Wise. 358, 1 Am. & Eng. E. E. Cas. 65 253 Harty v. C. E. E., 42 N. Y. 468 160 Harris, Proctor v., 4 C. & P. 337, 19 E. C. L. 148 v. Stevens, 31 Vt. 79 213 v. U. P. R E., 13 Fed. Rep. 591, 4 McCrary 457 38 B. S. E. E. v., 67 Ala. 6 473 D. & G. Ey. v., New. Mex. 15 Am. & Eng. E. E. Cas. 142 HI Harrison, G. K Ey. v., 10 Ex. 376 206, 390 v. Collins, 86 Penna. St. 153 126 v. G. N. Ey., 3 H. & C. 231 39, 95 Harper v. E. E. E., 32 N. J. L. 88, 3 Vroom 88 47, 264 St. L., 1. M. & S. Ey. v., 44 Ark. 524 306 Harvey v. E. E. E., 116 Mass. 269 260, 264 v. N. Y. C.&H.E.E. E., 88 N. Y. 481, 8 Am. & Eng. E. E. Cas. 515 318, 338 Hassard, P. C. P. Ey. v., 75 Penna. St. 367 t>8, 291, 454 Hathaway, Malone v., 64 N. Y. 5 321 Hause, U. P. E. E. v., 1 Wyoming 27 122 Hawks, A. G. S. Ey. v., 72 Ala. 112, 18 Am. & Eng. E. E. Cas. 197 160, 251, 265, 284, 416 Hawker, Mill v., L. E. 9 Ex. 309, 10 Id. 92 111 Hawkins v.G. W. E. E., 17 Mich. 57, 18 Id. 427 502 Hay v. G. W. Ey., 37 Up. Can. (Q. B.) 456 283 Hays v. H. G. N. E. E., 46 Tex. 280 112 Hayes v. Kennedy, 41 Penna. St. 378 31 v. Gallagher, 72 Penna. St. 136 148 v. M. C.E. E.,111 U.S. 228, 15 Am. & Eng. E. E. Cas. 394 27, 41, 198, 4&» TABLE OF CASES CITED. Haves v. W. R. R., 3 Cush. 270 356 F. S. &G. St. P. R.R. v., 97 N. Y. 259. 21 Am. & Eng. R.R. Cas.' 358 291 Havward, Allen v., 7 Q. B. 960, 53 E. C. L. 122 Kendall v., 5 Bing. N. C. -124 476 Hazard, (J., B. & Q. R. R. v., 26 111. 373 288, 292 v. C, B. & Q. R. R., 1 Biss. 503 288 Havcroft v. L. S. & M. S. Ry., 64 N. Y. 636 71 Hanlon v. S. B. H. R. R., 129 Mass. 310, 2 Am. & Eng. R. R. Cas. 18 42 Hatfield v. C, R. I. & P. R. R., 61 Iowa 434, 11 Am. & Eng R. R. Cas. 153 48 Hawes «. B. C. R. & N. R. R., 64 Iowa 315, 19 Am. & Eng. R. R. Cas. 220 436, 508 Hawley v. N. C. Ry., 82 N. Y. 370, 2 Am. & Eng. R. R. Cas. 248 305, 375, 3S2 Haynes v. E. T. & G. R. R., 3 Cold. (Tenn.) 222 355 Hathaway v. M. C. R. R., 51 Mich. 253, 12 Am. & Eng. R. R. Cas. 249 346, 373 Harney, C. & G. E. R. R. v., 28 Ind. 28 342, 350 Harrington, T. & P. Ry. v., 62 Tex. 597, 21 Am. & Eng. R. R. Cas. 571 315, 344 Haslan v. M. & E. R. R., 4 Vroom. 147 168 Hatcher v. T. W. & W. R. R., 62 111. 477 135 Hatfield v. St. P. & D. Ry., 33 Minn. 130, 18 Am. & Eng. R. R. Cas. 292 424 Harper v. I. & St. L. R. R., 44 Mo. 488 315 H. B. M. & F. R. R., Thurber v., 60 N. Y. 326 69 Heazle v. I. B. & W. Ry., 76 111. 501 440 Head, L. N. A. & C. R. R. v., 80 Ind. 117, 4 Am. & Eng. R. R. Cas. 619 157, 162, 196 Hearn, Child v., L. R. 9 Ex. 176 81, 86 Heaven v. Pender, 11 Q. B. D. 507 7, 200, 202, 224 Heeman, Towanda Coal Co. v., 86 Penna. St. 418 109,115 Heaven, Aston v., 2 Esp. 533 35 Hedges, Ivay v., 9 Q. B. D. 80 177 Heeney v. Sprague, 11 R. I. 456 42 Hegeman v. Western R. R., 13 N. Y. 9 2:57, 240, 240 Heil v. Glanding, 42 Penna. St. 493 47, 56, 60 P. & R. R. R. v., 5 Weekly Notes of Cases (Penna.) 91 74, 434 Heilman, N. P. R. R. v., 49 Penna. St. 60 168 Heine v. C. & N.W. Ry., 58 Wise. 528 327, 366 Hemmingway, Sproul v., 14 Pick. 1 103 Hemingway v. McCullough, 15 Weekly Notes of Cases (Penna.) 328 102 Henderson, P. R. R. v., 43 Penna. St. 449, 51 Id. 315 50, 205, 254, 422, 491, 501 P. C. & St. L. Ry. v., Ohio St. , 5 Am. & Eng. R R. Cas. 529 317 v. Stevens, L. R. 3 H. L. Sc. & Div. 470 501 Hendricks v. S. A. R. R., 44 N. Y. Sup. Ct. 8 281 J. R. R. v., 26 Ind. 228 47, 63, 265 v. W. & A. R. R., 52 Ga. 467 60, 510 Hendrie, Downey v., 46 Mich. 498, 8 Am. & Eng. R R. Cas. 386 291 Henley v. H. R. R., 1 Edm. S. C. 359 240 Henry, v. L. S. & M. S. Ry., 49 Mich. 495, 8 Am. & Eng. R. R. Cas. 110 299, 366, 434 v. P. & A. Bridge Co., 8 W. & S. 85 146 v. S. I. Ry., 81 N. Y. 373, 2 Am. & Eng. R. R. Cas.. 60 307, 318, 368 v. St. L., K. C. & N. Ry., 76 Mo. 288, 12 Am. & Eng. R. R. Cus. 136 26, 283 Henlock, Sadler v., 4 El. & Bl. 570, 82 E. C. L. 123 Herchenroder, Salisbury v., 106 Mass 458 42 Herbert v. N. P. Ry., Dak. , 8 Am. & Eng. R. R. Cas. 85, 116 U. S. 642 307, 331 Hester, I. & G. N. R. R. v., 64 Tex. 401, 21 Am. & ling. R. R. Cas. 535 349 Hetherington v. N. E. Ry.. 9 Q. B. D. 160 489 Hewitt, Rigby v ■ 5 Ex. 240 82 TABLE OF CASES CITED. li Hexamer v. Webb, 101 TS. Y. 877 122, 125 Hey v. Philadelphia, 2 Weekly Notes of Cases (Penna.) 466 39 Henigh, C. B. & P. E. B. v., 23 Kans. 347 73 Heenrich v. P. P. P. Co., 20 Fed. Eep. 100, 18 Am. & Eng. E. E. Cas. 379 109 Hendrie, Kelly v., 26 Mich. 255 88 Henks, \V. E. E. v., 91 111. 406 160 Herring v. W. & E. E. E., 10 lred. 402 74, 192, 193 Hensil, Penna. Co. v., 70 Ind. 569, 6 Am. & Eng. E.E. ("as. 79 162, 164, 447 Ilenze v. St. L., K. C. & N. E. E.. 71 Mo. 636, 2 Am. & Eng. E. E. Cas. 212 169, 173 Henrice, P. C. P. Ey. v., 92 Penna. St. 431, 4 Am. & Eng. E. E. Cas. 544 195, 419 Hendrv, Vanderbeck v., 34 N. J. L. 472 177 Herrmann v. N. O. & C. E. E., 11 La. An. 5 398 H. G. N. E. E., Havs v., 46 Tex. 280 112 Hiatt, E. & C. E. E. v., 17 Ind. 102 37, 50 Hibbard v. N. Y. & E. E. E., 15 N. Y. 455 215, 250 Hice v. Kugler, 6 Wh. 336 47 Hicks v. N. A. & H. Ey., 4 B. & S. 403 n. 116 E. C. L. 494 Hickey v. B. & L. E. E., 14 Allen 429 265, 284 Higgins, H. & St. J. E. E. v., 36 Mo. 418 47, 211, 286 v. Bucher, Yelv. 89 397 St. L, I.M. & S. E. E. v., 44 Ark. 293, 21 Am. & . Eng. E. E. Cas. 629 303 v. W. T. & E. E., 46 N. Y. 23 109 Hill, Corby v., 4 C. B. N. S. 556, 93 E. C. L. 200 v. N. E. Co., 9 B. & S. 303 39, 95 v. Gust, 55 Ind. 45 338 Hilliard v. Eichardson, 3 Gray 349 122 Hills, Catlin v., 8 C. B. 123, 65 E. C. L. 80, 86 Hilts v. C. & G. T. Ey., 55 Mich. 437, 17 Am. & Eng. E.E. Cas. 628 315 Highland St. Ey., Day v., 135 Mass. 113, 15 Am. & Eng. E. E. Cas. 150 65 Hinckley v. C. C. E. E., 120 Mass. 262 436 Hinds, P. F. W. & C. E. E. v., 53 Penna. St. 512 39, 280 Hinton v. Dibbin, 2 Ad. & El. N. S. 661, 42 E. C. L. 8 Hirschfeld i>. L. B. & S. C. Ey., 2 Q. B. D. 1 508 H. M. & F. Ey. v. Connell, 88 Penna. St. 520 ^ 188, 196 Crissey v.. 75 Penna. St. 83 68, 454 v. Gray, 3 Weekly Notes of Cases (Penna.) 421 68 v. Kelley, 102 Penna. St. 115 35,74, 111 Smith v., 92 Penna. St. 450 76 Hoagland, Penna. Co. v., 78 Ind. 203, 3 Am. & Eng. E. E. Cas. 436 262, 263, 467 Hoag v. L. S. & M. S. E. E., 85 Penna. St. 293 12, 13 Hoar v. M. C Ev., 70 Me. 65 188, 210 Hobbitt v. L. & N. W. Ey., 4 Ex. 243 97, 102, 120 Hobbs v. L. & S. W. Ey., L. E. 10 Q. B. Ill 2-1 , 263, 390, 459, 463 B. & O. E. E. v., Md. 19 Am. & Eng. E. E. Cas. 337 169 Hodsoll v. Stallebrass, 11 Ad. & El. 301, 39 E. C. L. 473 Hodgkins v. E. E. E., 119 Mass. 419 303 Hoehl, P. & M. E. E., 12 Bush. (Ky.) 41 70 Hoffman v. N. Y. C. & H. E. E. E., 75 N. Y. 605 253 v. N. Y. C. & H. E. E. E., 44 N. Y. Sup. Ct. 1 445 N. Y. C. & H. E. E. E. v., 87 N. Y. 25, 4 Am. & Eng. E. E. Cas. 537 109, 189 I. C. E. E. v., 67 111. 287 224 Hogan r. C. M. & St. P. Ey.. 59 Wise. 139, 15 Am. & Eng. E. E. Cas. 439 74, 167, 454 v. S. E. Ey., 28 L. T. N. S. 271 281 Hofna^le v. N. Y. C. & H. E. E. E., 55 N. Y. 608 122 Holbrook v. U. & S. E. E., 12 N. Y. 236 284. 434, 443 Hoke v. St. L., K. C.^& N.' Ky., 11 Mo. App. 575 368 Holden v. F. E. E., 129 Mass. 268, 2 Am. & Erg. E. E. Cas. 94 306, 363, 367 Hi TABLE OF CASES CITED. Holdeu v. L. N. G. & C. Co., 3 M. G. & S. 1, 54 E. C. L. 47 Hole v. S. & S. Ry., 6 H. & N. 4S8 126 Holbrook, Corcoran v., 59 N. Y. 517 320 Bird v., 4 Bing. 628, 15 E. C. L 39 183 Meara »., 20 Ohio St. 137 ' 137 Hollahau, Lewis v., 103 Penna. St. 425 495 Holland, Ormond v., El., Bl. & El. 102, 96 E. C. L. 297 v. C. M. & St. P. Ky., 18 Fed. Kep. 243 375 Holt, Churchill v., 127 Mass. 165 394 Holly v. Boston Gas Light Co., 8 Gray 123 91 Holyoke v. G. T. R. R., 48 N. H. 541 421 Holmes v. Clark, 6 H. & N. 349, 7 H. & N. 937 300, 329, 356, 382 C. C. E. R. v., 5 Colo. 197, 8 Am. & Eng. R. R. Cas. 410 54 v. Mather, L. R. 10 Ex. 261 389 v. Onion, 2 C B. N. S. 790, 89 E. C. L. 103 v. N. E. Rv., L. R. 4 Ex. 254, 6 Id. 123 223, 372 v. Wakefield, 12 Allen 580 108 v. Worthington, 2 F. & F. 533 300 Hodges v. St. L., K. C. & N. Ry., 71 Mo. 50, 2 Am. & Eng. R. R. Cas. 190 160, 161 Hogarth, C. & A. R. R. v., 38 111. 370 193 Houck, I. C. Ry. v., 72 111. 285 299, 306, 446 Holt, A., T. & S. F. R. R. v., 29 Kans. 149, 11 Am. & Eng. R. R. Cas. 206 303, 337 Homan v. Stanley, 66 Penna. St. 464 148 Honor v. Albrighton, 93 Penna. St. 475 356 Hope, P. R. R. v., 80 Penna. St. 373 13 39 Hopkins, M. & O. R. R. v., 41 ' Ala. N. S. 489 502, 503 v. A. & St. L. R. R., 36 N. H. 9 471 Hoppe v. C, M. & St. P. Ry., 61 Wise. 357, 19 Am. & Eng. R. R. Cas. 74 77, 197, 425 Hoosey, C. & A. R. R. v., 99 Penna. St. 492, 6 Am. & Eng. R. R. Cas. 254 284 Home v. Midland Ry., L. R. 8 C. P. 131 460, 462 Riley v., 5 Bing. 217 498 Smith v., 8 Taunt. 144, 4 E. C. L. 7 Horn, Cuddy v., 46 Mich. 596 413 Hood v. N. Y. & N. H. R. R., 22 Conn. 1, 23 Id. 609 44, 139 Houser v. C, R. I. & P. R R., 60 Iowa 230, 8 Am. & Eng. R. R. Cas. 501 306 Hoven v. B. & M. R. R., 20 Iowa 562 374 Hoye v. C. & N.W. Ry., 62 Wise. 666, 19 Am. & Eng. R. R. Cas. 347 168, 454 Horst, I. & St. L. R. R. v., 93 U. S. 291 204, 233, 286, 292, 436 P. R. R. v., 16 Weekly Notes of Cases (Penna.) 567 151, 155 Hounsell v. Smvth, 7 C. B. N. S. 731, 97 E. C. L. 183 Houston, G, R. I. & P. R. R. v., 95 U. S. 697 168, 169, 172 Hough v. T. & P. Ry., 100 U. S. 213 300,306,329,330,369,382 Houston, Griggs v., 104 U. S. 553 293 Howard Ex. Co. v.Wile, 64 Penna. St. 201 454 Howe, V. & M. R. R. v., 52 Miss. 202 241 Howell, Lovell d,1C.P.D. 161 356 Howells v. L. S. Steel Co., L. R. 10 Q. B. 62 321 Howland v. Vincent, 10 Mete. 371 148 v. M., L. S. & W. Ry., 54 Wise. 226, 5 Am. & Eng. R. R. Cas. 578 349, 368 Howard v. St. P., M. & M. Ry., 32 Minn. 214, 19 Am. & Eng. R. R. Cas. 283 166 L. & N. R. R. v., Ky. , 19 Am. & Eng. R. R. Cas. 98 190, 192 Howd v. M. C. R. R., 50 Miss. 178 301 314 H. R. R , Henley v., 1 Edm. S. C.' 359 240 Jones v., 107 Mass. 261 152 Snow v., 8 Allen 441 221, 305, 372, 377 v. Coyle, 55 Penna. St. 396 168, 416 Gannon v., 112 Mass. 234 372 Wilds v., 24 N. Y. 230, 432 60, 436 Webster v., 38 N. Y. 260 86 Ernst v., 39 N. Y. 61 173 TABLE OF CASES CITED. liii BL R. R. R., Button v., 18 N. Y. 248 54, 436 Luby v., 17 N.Y. 131 416 Johnson v, 20 N. Y. 65, 5 Duer 27 54, 436 Priest r., 65 N. Y. 589 114 Russell v., 17 N. Y. 134 211, 356 Mooney v., 5 Robertson (N. Y.) 548 86 O'Mara v., 38 N. Y. 445 163, 167 Wilds v., 29 N. Y. 315 146, 159 Von Schaick v., 43 N. Y. 527 283 Green v., 2 Reyes (N.Y.) 294 398 H. Ry., Brand v., L. R. 1 Q. B. 130, 2 Id. 223, L. R. 4 H. L. 171 146 H. St. Ry., Banks v., 136 Mass. 485, 19 Am. & Eng. R. R. Cas. 139 65, 111 H. S. R. R., Galena v., 13 Fed. Rep. 116 114 Hubbard, Marshall v., 117 U. S. 415 454 Hudelson, I. C. R. R., 13 Ind. 325 213, 257 Hubvner v. N. O. & C. R. R., 23 La. An. 492 265 Hudson v. L. & N. R. R., 14 Bush (Ky.) 303 153 Hughes v. Boyer, 9 Watts 556 102, 454 v. C. & S. Ry., 15 Am. & Eng. R. R. Cas. 100, and note, 39 Ohio St. 461 122, 125 v. Macfie, 2 H. & C. 744 39, 95, 187 C.V.R. R. v., 11 Penna. St. 140 14S N. O., J. & N. Ry. v., 49 Miss. 258 314, 363 v. N.Y. & N. H. R. R., 36 N.Y. Sup. Ct. 222 445 v.W.&St.P.R.R.,27Minn. 137 343, 344 Hulburt v. N. Y. C. R. R, 40 N. Y. 145 253 Hulett v. St. L., K. C. & N. Rv., 67 Mo. 239 303, 376 Hulsencamp v. C. R. R., 37 Mo. 537 54 Hummell, P. & R. R. R. v., 44 Penna. St. 375 190,191,190,434 Humphrey, Gallagher v., 6 L. T. N. S. 684 178 Schmid v., 48 Iowa 652 65 Hunt v. C. & N. W. Ry., 26 Iowa 363 356 v. P. R. R., 51 Penna. St. 475 1 25 Huntlev, G. R. & I. R. R. v., 38 Mich. 537 237, 276, 417, 426 Hunter, Scott v., 46 Penna. St. 192 39 v. Stewart, 47 Me. 419 25 v. Wanamaker, 17 Weekly Notes of Cases (Penna.) 232 (Pa. C. C. JR. ) 12 M. & C. R. R. v., 11 Wise. 160 156 Husson, N. C. Ry. v., 13 Weekly ISotes of Cases (Penna.) 361, 12 Am. & Eng. R. R. Cas. 241 346 Hutchinson v. Y., N. & B. Ry., 5 Ex. 343 342, 351, 355. 357, 366 v. W. & A. R. R., 53 Tenn. 634 43, 413 I. C. R. R. v., 47 111. 408 74, 192 v. St. P.. M. & M. Ry.. 32 Minn. 398, 19 Am. & Eng. R. R. Cas. 280 166, 169 Borries v., 18 C. B. K S. 445, 114 E. C. L. 460 Huzzey v. Field, 2 C. M. & R. 432 106 Humphreys, E. T. V. & G. R. R. v., 12 Lea (Tenn.) 200, 15 Am. & Eng. R. R. Cas. 472 196 Huffman, C, R. I. & P. Rv. v., 78 Mo. 50, 17 Am. & Eng. R. R. Cas. 625 314, 315. 318 L. & I. Ry. v., 28 Ind. 287 91 Hubgh v. N. O. & C. R. R., 6 La. An. 495 306, 374, 398 Hurst, N. O., J. & G. N. R. R. v., 36 Miss. 660 467, 471 v. Taylor, 14 Q. B. D. 918 149 Huey, D."& B. J. Ry., 5 Irish C. L. 206 373 Hurt v. S. R. R., 40 Miss. 391 204, 207 Hyatt r. Johnson, 91 Penna. St. 196 454 Hydraulic Works v. Orr, 83 Penna. St. 332 184, 196 Hyman v. Nye, 6 Q. B. D. 685 233 Hynes v. S. F. & N. P. R. R., 65 Cal. 316, 20 Am. & Eng. R. R. Cas. 486 28, 198 H. & B. T. R. R. v. Decker, 82 Penna. St. 119, 84 Id. 419 314, 330, 445, 491 H. & G. N. R. R. v. Miller, 51 Tex. 270 338, 341 V. Randall, 50 Tex. 254 305 H. & St. J. R. R., Bell v., 72 Mo. 50, 4 Am. & Eng. R. R. Cas. 580 111, 160, 193, 447 liv TABLE OF CASES CITED. H. & St. J. R. R. v. iliggins, 36 Mo. -US 47, 211, 286 Kelley v., 70 Mo. 604 263 Loyd v., 53 Mo. 509 264, 424 Limekeiler v., 33 Kans. 83, 19 Am. & Eng. R. R. Cas. 184 410 Porter v., 71 Mo. 66, 2 Am. & Eng. R. R. Cas. 44 304, 305, 329, 473, 474 Truitt v., 62 Mo. 527 34 Sherman v., 72 Mo. 62, 4 Am. & Eng. R. R. Cas. 589 73, 115, 209, 210, 212, 283, 370, 371 Snyder v., 60 Mo. 413 74 Sweigert v., 75 Mo. 475, 9 Am. & Eng. R. R. Cas. 322 263, 436 Prv v., 73 Mo. 123 470 Winters v., 39 Mo. 468 285 McDermott v., 73 Mo. 516, 2 Am. & Eng. R R. Cas. 85 314, 330, 416 v. Fox, 31 Kans. 587, 15 Am. & Eng. R. R. Cas. 325 370 Price v., 77 Mo. 5U8, 15 Am. & Eng. R. R. Cas. 168 377 Adams v., 74 Mo. 553, 7 Am. & Eng. R. R. Cas. 414 416 Cagney v., 69 Mo. 416 301 Sawver v., 37 Mo. 240 35. 235 Haflihan v., 71 Mo. 113, 2 Am. & Eng. R. R, Cas. 117 35, 2S3, 299, 344, 374 Kelley v., 75 Mo. 138, 13 Am. & Eng. R R. Cas. 638 42, 168, 173, 174 Isabel v., 60 Mo. 482 55, 77 Isabel v., 65 Mo. 475 196 v. Martin, 11 Bradwell 386 213 Scoville v., 81 Mo. 434, 22 Am. & Eng. R. R. Cas. 534 55 Turner v., 74 Mo. 603, 6 Am. & Eng. R. R. Cas. 38 135, 169 Welsch v., 72 Mo. 551, 6 Am. & Eng. R. R. Cas. 75 163 Zimmerman v., 71 Mo. 476, 2 Am. & Eng. R. R. Cas. 191 55, 75 Brown v., 50 Mo. 461 196 v. Clotworthy, 80 Mo. 220, 21 Am. & Eng. R. R. Cas. 371 263, 264 H. & T. C. Ry. v. Sympkins, 54 Tex. 615, 6 Am. & Eng. R. R. Cas. 11 196 PAGE H. &T. C. Ry. v. Hampton, 64 Tex. X-ll, 22 Am. & Eng. R. R. Cas. 291 216, 376 v. Schmidt, 61 Tex. 282, 21 Am. & Eng. R. R. Cas. 345 265 v. Maddox, Tex. , 21 Am. & Eng. R. R. Cas. 625 307 v. Clennnons, 55 Tex. 88, 8 Am. & Eng. R. R. Cas. 396 286 v. Dunham, 49 Tex. 181 303 v. Gorbett, 49 Tex. 573 47, 60 v. Myers, 55 Tex. 1 10, 8 Am. & Eng. R. R. Cas 114 314, 346, 374 v. Leslie, 57 Tex. 83, 9 Am. & Eng. R. R. Cas. 384 265 v. Shafer, 54 Tex. 641, 6 Am. & Eng. R. R. Cas. 421 417 v. Willie, 53 Tex. 318 367 Watson v., 58 Tex. 434, 11 Am. & Eng. R. R. Cas. 213 345, 346 Robinson v., 46 Tex. 540 356, 373 v. Pinto, 60 Tex. 516, 15 Am. & Eng. R. R. Cas. 286 305 v. Marcelles, 59 Tex. 334, 12 Am. & Eng. R. R. Cas. 231 329, 369 v. Rider, 62 Tex. 267, 21 Am. & Eng. R. R. Cas. 5^3 n. 268 r. Fowler, 56 Tex. 452, 8 Am. & Eng. R. R. Cas. 504 32 v. Waller, 56 Tex. 331, 8 Am. & Eng. R. R. Cas. 431 74 v. Ricbards, 59 Tex. 373, 12 Am. & Eng. R. R Cas. 70 191 H. & T. Ry. v. Oram, 49 Tex. 341 308 L, B. & W. R. R. v. Hall, 106 111. 371, 12 Am. & Eng. R R. Cas. 146 277 Heazle v., 76 111. 501 440 v. Toy, 91 III. 474 306 v. Burdge, 94 Ind. 46, 18 Am. & Eng. R. R. Cas 192 109 v. Flanigan, 77 111. 365 302, 303 1. C. R. R.v.Able, 59 111.131 63, 265 Arnold v., 83 111. 273 251, 502, 503 v. Barron, 5 Wall. 90 133, 141, 469, 473 v. Hutchinson, 47 111. 408 74, 192 Muldowney v., 36 Iowa 462, 39 Id. 615 50, 373, 374, 376 TABLE OF CASES CITED. lv I. C. E. K. v. Patterson, 93 HI. 290, 69 Id. 650 60, 374 Quinn v., 51 111. 495 284 v. Bead, 37 111. 484 502 v. Hofl'man, 67 111. 287 224 v. Chambers, 71 111. 519 265 v. Lutz, 84 111. 598 265 v. Frelka, 110 111. 498, 18 Am. & Eng. R. R. Cas. 7 222, 470 v. Houck, 72 111. 285 299, 306, 446 McClary v., 3 Neb. 44 32 v. Downey, 18 111. 259 112, 115 Burling v., 85 111. 18 319, 377 v. Cox, 21 111. 20 368 v. Godfrey, 71 111. 500 177, 190, 197 v. Jewell, 46 111. 99 373 v. Keen, 72 111. 512 367 v. Hall, 72 111. 222 190 v. Modglin, 85 111. 481 196, 377 Spencer v., 29 Iowa 55 169 Way v., 40 Iowa 341 373 v. Sutton, 42 111. 438 418 v. Welch, 52 111. 183 308 v. Buckner, 28 111. 299 75 Daggett v., 34 Iowa 284 283, 374 Greenleaf v , 29 Iowa 14 373 v. Hudelson, 13 Ind. 325 213, 257 Law v., 32 Iowa 534 251 v. Slatton, 54 111. 133 265 ■o. Bachas, 55 111. 379 166 v. Green, 81 111. 19 283 Weldon v., 52 111. 290 486, 493 I. C. & L. R. R., Dick v., 38 Ohio 389, 8 Am. & Eng. R. R. Cas. 101 370 Billman v., 76 Ind. 166, 6 Am. & Eng. R. R. Cas. 41 13, 26, 151 I. C. & R. Ry., Bell v., 53 Ind. 57 135 Ihl v. F. S. S. R. R.,47 N. Y. 317 70, 482, 489 Illidge v. Goodwin, 5 C. & P. 190, 24 E. C. L. 39, 95, 148 Illinois, Munn v., 94 U. S. 130 4 Illinois R. R. v. Adams, 42 111. 474 502 Ilott v. Wilkes, 3 B. & Aid. 304, 5 E. C L. 47, 183 Imhoff v. C. & M. R. R., 20 Wise. 344 215, 263 Improvement Co. v. Munson, 14 Wall. 442 454 Indermaur v. Dames, L. R. 1 C. P. 272, 2 Id. 311 200 Indiana R. R. v. Monday, 21 Ind. 48 501 Indiana Car Co. v. Parker, 100 Ind. 191 303 329 Ingalls v. Bills, 9 Mete. 1 233 Ingraham, T. W. & W. Ry. v., 77 111. 309 304, 307, 329, 346, 369 Insurance Co. v. Seaver, 19 Wall. 531 11 v. Tweed, 7 Wall. 44 11 Spensley v., 54 Wise. 433 454 Sabolla v., 54 Wise. 687 454 Iowa, C, B. & Q. R. R. v., 94 U. S. 161 4, 5 I., P. & C. R. R. v. Allen, 31 Ind. 294 501 Iron Screw C. Co., Grill v., L. It. 1 C. P. 612 6, 8 I. R. R. v. Mowery, 36 Obio St. 418, 3 Am. & Eng. R. R. Cas. 361 . 15, 62 274, 439 i>. Beaver, 41 Ind. 493 205, 292 Cunningham v., 51 Tex. 503 122 v. Estes, 96 111. 470 306 Keep v , 9 Fed. Rep. 625 139 Isaacs v., T. A. R. R., 47 N. Y. 122 112, 114 Isabel v. H. & St. J. R. R., 60 Mo. 482 55, 77 v. H. & St. J. R. R., 65 Mo. 475 196 Isbell v. N. Y. & N. H. R. R., 27 Conn. 393 54 Ivay v. Hedges, 9 Q. B. D. 80 177 I. & G. N. R. R., Beauchamp v., 56 Tex. 239 251 v. Dovle, 49 Tex. 190 307 v. Holloren, 53 Tex. 46, 3 Am. & Eng. R. R. Cas. 343 31, 32, 233, 240, 246 v. Hester, 64 Tex. 401, 21 Am. & Eng. R. R. Cas. 535 349 v. Kindred, 57 Tex. 491, 11 Am. & Eng. R. R. Cas. 649 486 v. Kentle, Tex. , 16 Am. & Eng. R. R. Cas. 337 114 v. Smith, 62 Tex. 252, 19 Am. & Eng. R. R. Cas. 21 72, 193 Stewart v., 53 Tex. 289, 2 Am. & Eng. R. R. Cas. 497 254 v. Stewart, 57 Ter. 166 470 v. Jordan, Tex. , 10 Am. & Eng. R. R. Cas. 301 172 Prince v., 64 Tex. 144, 21 Am. & Eng. R. R. Cas. 152 208, 210 lvi TABLE OF CASES CITED. I. & G. N. K. E. v. Terrv, 62 Tex. 3,S0, 21 Am. & Eng. R. R. Cas. 323 263, 467 v. Gilbert, 64 Tex. 536, 22 Am. & Eng. R. R. Cas. 4U5 467 I. & St. L. R. R. y. Horst, 93 U. S. 291 204, 233, 2S6, 292, 436 v. Stoat, 53 Ind. 143 156 v. Stables, 62 111. 313 473 v. Cobb, 68 111. 53 471 Harper v., 44 Mo. 488 315 v. Kennedy, 77 Ind. 507, 3 Am. & Eng. R. R. Cas. 467 251 v. Morganstern, 106 111. 216, 12 Am. & Eng. R. R. Cas. 228 364 I. & C. R. R. v. Rutherford, 29 Ind. 83 284 v. Love, 10 Ind. 554 305 I. & V. R. R. v. McLin, 83 Ind. 435, 8 Am. & Eng. R. R. Cas. 237 159 Jackson, Metropolitan Ry. v., L. R. 3 App. Cas. 198, L. R. 10C.P.49, 2C. P.L. 125, H. L. 9, 24, 278, 451, 453, 454 C & N. W. Ry. v., 55 111. 492 304 329 Stone v., 12 C. B. 199, 81 E.' C. L. 183 T. H. & I. R. R. v., 81 Ind. 19, 6 Am. & Eng. R. R. Cas. 178 114, 233, 275 v. N. C. & St. L. Ry., 13 Lea (Tenn.) 491, 19 Am. & Eng. R. R. Cas. 433 24, 151 v. K. C, L. & S. K. R. R., 31 Ivans. 761, 15 Am. & Eng. R. R. Cas. 178 300, 319 v. S. A. R. R., 47 N. Y. 274 109, 114 Jacobus v. St. P. & C. R. R., 20 Minn. 125 207, 286, 501 Jacques v. B. II. R. R., 41 Conn. 61 473 Jacobs, G. & C. U. R. R. v., 20 Ind, 478 60 James, Penna. Co. v., 81 j Penna. St. 194 77, 158, 196 v. G. W. Ry., L. R. 2 C. P. 634, note 165 Jarvis v. Dean, 3 Bing. 447, 11 E. C L. 148 Jamison v. S. J. & S. C. R. R, 55 Cal. 593, 3 Am. & Eng. R. R. Cas. 350 6, 233, 240, 241 Jay, Wigmore v., 5 Ex. 354 323, 332, 333 J. C. H. Ry., Gilson v., 76 Mo. 282 12 Am. & Eng. R. R. Cas. 132 235 Jeffrey v. K. & D. M. R. R., 56 Iowa 546, 5 Am. & Eng. R. R. Cas. 568 299 Jencks v. Coleman, 2 Sumner 221 251 Jenkins v. C, M. & St. P. Ry., 41 Wise. 112 112, 209 Jetter v. N. Y. & H. R. R., 2 Abb. Ct. App. Dec. 458 310 Jewell v. Parr, 13 C. B. 909, 76 E. C. L. 449, 454 v. C, St. P. & M. Ry., 54 Wise. 610, 6 Am. & Eng. R. R. Cas. 379 265 v. G. T. Ry., 55 N. H. 84 103, 370, 371 I. C. R. R. v., 46 111. 99 373 Jewett, Fuller v., 80 N. Y. 46 300, 306, 329, 369 Klein v.. 26 N. J. Eq. 474 136, 257, 385, 481 Shaw v., 86 N. Y. 616, 6 Am. & Eng. R. R. Cas. Ill 168, 169, 173 Slater v., 84 N. Y. 61, 5 Am. & Eng R. R. Cas. 515 316, 317, 326, 344, 362, 363, 366 Terry v., 78 N. Y. 338 275 De Forrest v., 88 N. Y. 264, 8 Am. & Eng. R. R. Cas. 495 302, 305, 343, 345 J. M. & I. R. R. v. Riley, 39 Ind. 563 214, 255 v. Bowen, 49 Ind. 154 76 v. Parmalee, 51 Ind. 42 263 Joel v. Morison, 6 C. & P. 501, 25 E. C. L. 102 John v. Bacon, L. R. 5 C. P. 437 136, 241 Johnson v. Agricultural Ins. Co., 25 Hun 251 435 v. Bruner, 61 Penna. St. 58 300 v. B. & M. R. R, 125 Mass. 75 214, 283 Duckworth v., 4 H. & N. 653 486, 488 v. C. & N. W. Ry., 49 Wise. 529, 1 Am. & Eng. R. R. Cas. 155 69 v. H. R. R. R., 20 N. Y. 65, 5 Duer 27 54, 436 Kelly v., 128 Mass. 530 372 Rail v., 3 II. &C. 589 356 M. & W. R. R. v., 38 Ga. 409 284 v. W. C. & P. R. R., 70 Penna. St. 366 6, 18, 63, 264 v. C. V. R. R., 56 Vt. 707 106 TABLE OF CASES CITED. lvii Johnson v. E. & D. E. K., 81 N. C. 453 307 v. C. & N. W. Ey., 56 Wise. 274, 8 Am. & Eng. K. Ii. Cas. 471 69 v. L. & N. E. E., Ky. , 13 Am. & Eng. E. E. Cas. 623 75, 160, 161 v. 0.. E. I. & P. E. E., 58 Iowa 348, 8 Am. & Eng. E. E. Cas. 206 109, 116 v. St. P. & D. Ey., 31 Minn. 283, 15 Am. & Eng. E. E. Cas. 467 156, 166 S. W. E. E. v., 60 Ga. 667 190 C, B. & Q. E. E. v., 103 111. 512, 8 Am. & Eng. E. E. Cas. 225 425, 432 v. G. W. & S. Ey., 9 Irish Eep. C L. 108 502 Johnston, Bush v., 23 Penna. St. 209 148 Hyatt v., 91 Penna. St. 196 454 Tones v. Boyce, 1 Stark. 493, 2 E. C. L. 14, 62 B. & P. E. E. E. v., 95 U. S. 439 6, 47, 283, 374 v. F. Ey., L. E. 3 Q. B. 733 145 v. H. E. E., 107 Mass. 261 152 L. V. Coal Co. v., 86 Penna. St. 441 320, 322, 323 Robbins v., 15 C. B. N. S. 221, 109 E. C. L. 148 Williams v., 3 H. & C. 602 102, 104 v. L. S. & M. S. Ey., 49 Mich. 573, 8 Am. & Eng. E. E. Cas. 221 349 N. & D. E. E. v., 9 Heisk. (Tetin.) 27 306 S. E. E. v., 30 Kans. 601, 15 Am. & Eng. E. E. Cas. 201 305, 307 v. G. T. Ey., 45 Up. Can. (Q. B.) 193 38 v. Mayor, etc., of Liverpool, 14 Q. B. 1). 890 103 v. N. Y. C. & II. E. E. E., 28 Hun 364, 92 N. Y. 678 310 V. L. E. E., Ky. , 22 Am. & Eng. E, E. Cas. 295 n. 376 Owings v.. 9 Md. 117 42 W. & A. E. K.r.,65 Ga.G31, 8 Am. & Eng. E. E. Cas. 267 161 Jordin v. Crump, 8 M. & W. 782 183 Jordan, I. & G. N. Ey. v., Tex. , 10 Am. & Eng. E. E. Cas. 301 172 J. E. E. v. Hendricks, 26 Ind. 228 47, 63, 265 Kumler v., 33 Ohio St. 150 367 v. Swift, 26 Ind. 459 265 Jucker v. C. & N. W. E. E., 52 Wise. 150, 2 Am. & Eng. E. E. Cas. 41 28 Judson v. N. Y. & N. H. E. E., 29 Conn. 434 156 Juniata Bridge Co., Foster v., 16 Penna. St. 393 31 Kain v. Smith, 80 N. Y. 458, 2 Am. & Eng. E. E. Cas. 545 136^301,330,413,414 Kane, T. & P. Ey. v., Tex. , 15 Am. & Eng. E. E. Cas. 218 307 Kay v. P. E. E., 65 Penna. St. 273 6, 68, 91, 92, 166, 179 Karle v. K. C, St J. & C. B. E. E., 55 Mo. 476 88 K. C. Ey. v. Dills, 4 Bush (Ky.) 593 ' 54, 471 v. Fitzsimmons, 18 Kans. 34, 22 Id. 686, 15 Am. Ey. Eep. 220 122, 186 K. C, St. J. & C. B. Ey., Straus v., T5 Mo. 185, 6 Am. & Eng. E. E. Cas. 384 263, 265 Karle v., 55 Mo. 476 88 Kersey v., 79 Mo. 362, 17 Am. & Eng. E. E. Cas. 638 314 v. Flynn, 78 Mo 195, 18 Am. & Eng. E. E. Cas. 23 306, 382, 436, 444 K. C. E. E. v. Thomas, 79 Ky. 160, 1 Am. & Eng. K. E. Cas. 79 47, 246, 248 275, 286 K. C, L. & S. K. K. E., Jackson v., 31 Kans. 761, 15 Am. & Eng. E. E. Cas. 178 300, 319 Kean v. B. & O. K. E., 61 Md. 154, 19 Am. & Eng. E. E. Cas. 321 54, 74, 174 Kearney v. L. B. & S. C. Ey., L. E. 5 Q. B. 411, 6 Id. 759 148, 149, 441 Keating v. N. Y. C. & H. E. E. E., 49 N. Y. 673 273 v. N. Y. C. & H. E. E. E., 98 N. Y. 128 263 Keeley v. E. Ey., 47 How. Pr. 256 38 Keffe v. M. & St. P: Ky., 21 Minn. 207 186 Keary, C, C. & C. Ey. v., 3 Ohio St. 254 324, 326, 370 Keenan, P., W. & B. E. E. v., 103 Penna. St. 104 307 lviii TABLE OF CASES CITED. Keen, I. C 11. K v., 72 111. 512 307 Keep r. I. K. R ,9 Fed. Rep. 625 139 Keller, P. R. R. t>., 67 Penna. St. 300 490 v. S. C. & St. P. R. K., 27 Minn 178 263, 419 Kelley, II. M. & F. Ry. v., Iu2 Penna. St 115 35, 74, 111 v. H. & St. J. R. R., 75 Mo. 133, 13 Am. & Eng. R. R. Cas. 038 42, 168, 173, 174 L. & N. R. R. v., 92 Ind. 371, 13 Am. & Eng. R. R. Cas. 1 282, 286, 287 v. C, M. & St. P. Ry , 50 Wise. 331, 2 Am. & Eng. R. R. Cas. 65 378 Kelly v. C, M. & St. P. R. R., 53 Wise. 74, 5 Am. & Eng. R R. Cas. 469 344 v. S. M. R. R., 28 Minn. 98, 6 Am. & Eng. R. R. Cas. 261 156, 422 Farlovv v., 108 U. S. 288 274 285 v. H. & St. J. R. R., 70 Mo.' 604 265 P. R. R. v., 31 Penna. St. 372 68, 69, 151, 471, 482 Transfer Co. v., 36 Ohio St. 86, 3 Am. & Eng. R. R. Cas. 335 86 v. Johnson, 128 Mass. 530 372 Steinmetz v., 72 Ind. 442 50 v. St. P., M. & M. Ry., 29 Minn. 1, 6 Am. & Eng. R. R. Cas. 93 163, 169 v. W. C. Ry., Wise. 21 Am. & Eng. R. R. Cas. 633 302, 309 v. Hendrie, 26 Mich. 255 88 Keefe, C. & A. R. R. v., 47 111. 108 367 Keegan v. W. R. R, 8 N. Y. 175 306 Kellow v O I. R. R., Iowa 21 Am. & Eng. R. R. Cas. 485 276 Kellogg, M. & St. P. Ry. v., 94 U. S. 469, 475 10, 13 v. N. Y. C. & H. R. R. R., 79 N. Y. 72 169, 494 Kendrick, S. R. R. v., 40 Miss. 374 263, 467, 471 Kennanl, N. J. R. R. v., 21 Penna. St. 203 284 KV;nnev ,■. ( '. R. R., 61 Ga. 590 307 C. R. R. v., 58 Ga. 485, 64 Id. 1 00, 8 Am. & Eng. R. R. Cas. 155 307 Yonge v., 26 Ga. Ill 275, 440 PAGE Kennedv, Hayes v., 41 Penna. St. 378 31 I. & St. L. R. R. v., 77 Ind. 507, 3 Am. & Eng. R. R. Cas. 467 251 v, N. M. R. R., 36 Mo. 351 54 Kentle, I. & G. N. Ry. v., Tex. , 16 Am.& Eng. R. R. Cas. 337 114 Kemp, B. C. P. Ry. v., 61 Md. 74, 18 Am. & Eng. R. R. Cas. 220 28, 391, 481 Kennell, Goodman v., 3 C. & P. 167, 14 E. C. L. 99 Kermode, Lowes v., 8 Taunt. 146 498 Kersey v. K. C, St. J. & C. B. R. R., 79 Mo. 362, 17 Am. & Eng. R. R. Cas. 638 314 Kerwhacker v. C, C, C. & I. Ry., 3 Ohio St. 172 54, 65 Kessenger v. N. Y. & H. R. R., 56 N. Y. 543 163, 166 Keyes, B. & B. Ry. v., 9 II. L. C. 555 209 Keystone Bridge Co. v. New- berry, 96"Penna. St. 246 323 Keyser v. C. & G. T. Ry., Mich. , 19 Am. & Eng. R. R. Cas. 91 196, 198 K. I. Co., Knupfle v., 84 N. Y. 491 42 Kieth v. N. II. & N. R. R., 140 Mass. 175, 23 Am. & Eng. R. R. Cas. 421 310 Kilgore. P. R. R. v., 32 Penna. St. 292 18, 203, 264 Killips, P. R. R. v., 88 Penna. St. 405 151,165,447 Kimball v. R. & B. R. R., 26 Vt. 247 502 Kindred, I. & G. N. R. R. v., 57 Tex. 491, 11 Am. & Eng. R. R. Cas. 649 486 King v. B. & W. R. R., 9 Cush. 112 301, 338, 366 v. N. Y. C. & H. R. R. R., 72 N. Y. 607 306 v. O. & M. Ry., U. S. C. C. Ind., 18 Am. & Eng. R. R. Cas. 386 281 v. O. R. R., U. S. C. C. Ind., 8 Am. & Eng. R. R. Cas. 119 377 Steamboat New World v., 1 6 How 469 8, 207, 233 V. Thompson, 87 Penna. bt. 365 481 v. M. Ry., 14 Fed. Rep. 277, 8 Am. & Eng. R. R. Cas. 119 330, 369 TABLE OF CASES CITED. lix King v. N. Y. C. & IT. E. E. R, 66 N. Y. 181 122 W. & A. E. B. v., 70 Ga. 261, 19 Am. & Eng. E. R Cas. 255 447 Kingsbury, Shoemaker v., 12 Wall. 369 293 Kinney v. C. E. E. of N. J., 34 N. J. L. 513 208, 505 v. Central E. E., 32 N. J. L. 407 502 Kinsley v. C. S. & M. S. E. E., 125 Mass. 54 136, 243 Kirb*«. P. E. E., 76 Penna. St. 506 225, 228 Kirk, N. P. R E. v., 90 Penna. St. 15, 1 Am. & Eng. E. E. Cas. 45 230, 490, 494 Kirkpatrick v. N. Y. C. & H. E. E. R, 79 N. Y. 240 306 Kinsey v. Crocker, 18 Wise. 74 163 Kinsley, Pendleton v., 3 Clif. 416 114 Kitteringbam v. I. C. & P. Ey., 62 Iowa 285, 18 Am. & Eng. E. E. Cas. 14 299 Klanowski v. G. T. Ey., Mich. , 21 Am. & Eng. E. E. Cas. 648 159, 427 Klein v. Jewett, 26 N. J. Eq. 474 136, 257, 385, 481 Kline v. C. P. E. E., 37 Cal. 400, 587 109 Klutts v. St. L., I. M. & S. Ey., 75 Mo. 642, 11 Am. & Eng. E. E. Cas."639 474, 480 Knapp v. S. C. & P. Ey., 65 Iowa 91, 18 Am. & Eng. E. E. Cas. 60 26, 305 Knight v. Abert, 6 Penna. St. 472 183 v. Fox, 5 Ex. 721 122 v. P. E. E., 23 La. An. 462 265 v. N. Y., L. E. & W. R E., 99 N. Y. 25 28 v. P. S. & P. E. E., 56 Me. 234, 57 Id. 202 136, 233, 241, 254, 470 Baydure v., 2 Weekly Notes of Cases (Penna.) 713 39 v. Quarles, 2 Brod. & B. 102, 6 E. C. L. 400 Knittal, L. S. & M. S. Ey. v., 33 Ohio St. 468 373 Knowlton v. E. Ey., 10 Ohio St. 260 501 v. M. C. E. E., 59 Wise. 278, 16 Am. & Eng. E. E. Cas. 330 65, 274 Knupfle v. K. I. Co., 84 N. Y. 491 42 Kolsti v. M. & St. L. Ey., 32 Minn. 133, 19 Am. & Eng. E. E. Cas. 140 . 186 Koons v. St. L. & 1. M. E. E., 65 Mo. 592 186 Koontz v. O, E. I. & P. Ey., 65 Iowa 224, 18 Am. & Eng. E. E. Cas. 85 305, 345 Kopitoff v. Wilson, 1 Q. B. D. 377 232 K. P. Ey., Behrens v. 5 Colo. 400, 8 Am. & Eng. E. E. Cas. 184 374, 375, 436 v. Miller, 2 Colo. 442, 20 Am. Ey. Eep. 245 32, 440, 493 v. Peavey, 29 Kans. 170, 11 Am. & Eng. E. E. Cas. 260 60, 384, 510 v. Cutter. 19 Kans. 83 469 v. Little' 19 Kans. 267 306 v. Lundin, 3 Colo. 94 431, 471 v. Eichardson 25 Kans. 391, 6 Am. & Eng. E. E. Cas. 96 16o v. Salmon, 11 Kans. 83 211, 356 Summerhays v., 2 Colo. 484 367 Kramer v. S. F., M. St. E. E., 25 Cal. 434 39^ Kresanowski v. N. P. Ey., 18 Fed. Eep. 229 374 Krom v. Levy, 48 N. Y. 679 460 Krouse, P., C. & St. L. Ey. v., 30 Ohio St. 222 215 Kroy v. O, E. I. & P. E. E., 32 Iowa 357 373 Kugler, Hice v., 6 Wh. 336 47 Kumler v. J. E. E., 33 Ohio St. 150 367 Kuntze, Ex. Co. v., 8 Wall. 342 501 K. & D. M. Ey., O'Neill v., 45 Iowa 546 374 Jeffrey v., 56 Iowa 546, 5 Am. & Eng. E. E. Cas 568 299 Albertson v., 48 Iowa 292 76 K. & L. E. E., Osborne v., 68 Me. 49 370 Lacy, S. E. & D. E. E. v., 43 Ga. 461 410 Lacev, P. & N. Y. C. E. E. v., 89 Penna. St. 458 13 Ladd v. N. B. E. E., 119 Mass. 412 306, 307 Laing v. Colder, 8 Penna. St. 479 233, 473, 501 Laird, Boswell v., 8 Cal. 469 122 Lalor v. O, B. & Q. E. R, 52 111. 401 350 Lamb v. Palk, 9 C. & P. 629, 38 E. C. L. 102 lx TABLE OF CASES CITED. Lambeth v. N. C. R. R., 66 N. C. 494 264, 287 Lambkiu o. S. E. Ry., 5 App. Cas. 352 34, 275, 470 Lamphear v. Buckingham, 33 Conn. 237 134 Lanning v. N. Y. C. R. R., 49 N. Y. 521 314, 330, 382 Langan ». St. L., I. M. & S. Ry., 72 Mo. 392, 3 Am. & Eng. R. R. Cas. 355 220, 256 Lane, P. & R. I. R. R. v., 83 111. 449 240, 286 v. Crombie, 12 Pick. 177 434 Langdon, P. R. R. v., 92 Penna. St. 21, 1 Am. & Eng. R. R. Cas. 87 251, 252, 286, 288, 289, 495 Lantz, M. S. & N. J. R. R. v., 29 Ind. 528 240 Latch v. R. Ry., 27 L. J. Exch. 155, 3H.&N. 930 (Am. ed.) 38 Laugher v. Pointer, 5 B. & C. 547, 12 E. C. L. 102, 103, 120 Lauman. Fairman v., 73 Ind. 568 470 Lavallev, L. S. & M. S. R. R. v., 36 Ohio St. 221, 5 Am. & Eng. R. R. Cas. 549 316, 323, 347, 370 Laverick, Searle v., L. R. 9 Q. B. 122 232 Lawson v. Bank of London, 18 C. B. 84, 86 E. C. L. 99, 112 v. O, St. P., M. & O. R. R., 64 Wise. 447, 21 Am. & Eng. R. R. Cas. 249 205 Lax v. Darlington, 5 Ex. D. 35 18, 63, 200 Lawless v. C. R. R. R., 136 Mass. 1, 18 Am. & Eng. R. R. Cas. 96 307, 329, 337, 369, 380 Lawrence v. N. Y. & N. H. R. R., 36 Conn. 63 502 Laicher v. N. O., J. & S. R. R., 28 La. An. 320 75 Larmore v. C. P. I. Co., 101 N. Y. 391 177 Lary v. O, O, C. & I. R. R., 78 Ind. 323, 3 Am. & Eng. R. R. Cas. 498 177, 190 Laverenz v. C, R. I. & P. Ry., 56 Iowa 689, 6 Am. & Eng. R. R. Cas. 274 169, 170 Langridge v. Levy, 2 M. & W. 519, 4 Id. 337 412 Langhoff v. M. & P. M. C. R. R., 19 Wise. 489 159 Lansing, Perry v., 17 Hun 34 86 Law v. I. C R. R., 32 Iowa 534 251 PAGlt L. B. & S. C. Ry., Bilbee v., 18 C. B. N. S. 584, 114 E. C. L. 165 Foy v., 18 OB. N. S. 225, 114 E. C. L. 266 Hirschfeld v., 2 Q. B. D. 1 508 Kearney v., L. R. 5 Q. B. 411, 6 Id. 759 148, 149, 441 Lovegrove v., 16 C. B. N. S. 669, 111 E. C. L. 323, 356, 367 Skinner v., 5 Ex. 787 206, 274, 390, 439 Stapley v., L. R. 1 Ex. 21 41, 164, 166, 172 Toomey v., 3 C. B. N. S. 146, 91 E. C. L. 258, 434, 449 Weller v., L. R. 9 C. P. 132 261, 262, 266, 267 L. Bridge Co., Sullivan v., 9 Bush 81 47 L. Canal Co., Parnabv v., 11 Ad. & El. 223, 39 E. C. L. 200, 201 L. C. & D. Ry., Lewis v., L. R. 9 Q. B. 71 261, 262, 270, 271 Moriarty v., L. R. 5 Q. B. 314 " 423 Gardner v., L. R. 2 Ch. 201 132, 134 L. O & N. Co., Lehigh Bridge Co. v., 4 Rawle 8 31 L. C & L. R. R. v. Case, 9 Bush (Kv.) 728 86, 486 v. Cavens, 9 Bush (Ky.) 559 323 v. Goetz, 79 Ky. 442, 14 Am. & Eng. R. R. Cas. 627 159 v. Mahony, 7 Bush (Ky.) 235 54, 431 L. C. & C. R. R., Felder v., 2 MtMu!lan403 192 L. C. Ry. v. Weams, 80 Ky. 420, 8 Am. . Melton, 2 Lea (Tenn.) 262 167 v. Filbern, 6 Bush (Ky.) 574 54 Adams v., Ky. , 21 Am. & Eng. E. E. Cas. 380 265 Bennett v., 102 U. S. 577, 1 Am. & Eng. E. E. Cas. 71 201, 253 Smith v., 75 Ala. 449, 21 Am. & Eng. E. E. Cas. 157 404 v. Watkins, Ky. ,12 Am. & Eng. K. E. Cas. 89 191 L. & N. W. Ey., Collett v., 16 Q. B. 984, 71 E. C. L. 215 Edwards v., L. R. 5 C P. 445 110, 112 Sharrod v., 4 Ex. 580 389 Saunders v., 8 C. B. N. S. 887, 98 E. C. L. 481 Freemantle v., 10 C. B. N. S. 95, 100E.C. L. 246,247 Gallin v., L. R. 10 Q. B. 212 500 Hobbitt v., 4 Ex. 243 97, 102, 120 LeBlanche v., 1 C. P. D. 286 467 Lunt v., L. E. 1 Q. B. 277 164 L. & N. W. Ey., Eadley v., L. E. 9 Ex. 91, 10 Id. 100, 1 App. Cas. 754 53, 54 Eeedie v., 4 Ex. 243 38, 97, 102, 120, 125 Eowley v., L. E. 8 Ex. 221 431, 469, 475, 479, 484 Skelton v., L. E. 2 C. P. 361 172 Stubley v., L. E. 1 Ex. 13 163, 166 Wright v., L. E. 10 Q, B. 298, 1 Q. B. D. 252 223, 372 L. & P. By., Muschamp v., 8 M. 6 W. 421 137 L. & M. M. Ey. v. Montgomery, 7 Ind. 475 48 L. & St. K. Docks Co., Scott v., 3 H. & C. 596 438, 441 Griffiths v., 12 Q. B. D. 493, 13 Id. 259 344 N. P. & O. C. M. Co. v., 9 Ch. D. 515 33 Smith v., L. K. 3 C. P. 326 200 L. & S. E. Ey., Cockle v., L. E. 5 C. P. 457, 7 Id. 321 266, 267 L. & S. W. Ey., Allen v., L. E. 6 Q. B. 65 110 Davey v., 11 Q. B. D. 213, 12 Id. 73 172, 436 Ford v., 2 F. & F. 730 165, 246 Hobbsi-., L. E. 10 Q. B.lll 24, 263, 391, 459, 463 Poulton v., L. E. 2 Q. B. 534 110 Smith v., L. E. 5 C. P. 102 6, 39 L. & Y. Ey., Adams v., L. E. 4 C. P. 739 15, 16, 63, 279 Armstrong v., L. E. 10 Ex. 47 80, 86 Blamires v., L. E. 8 Ex. 283 41, 276 Bradshaw v., L. E. 10 C. P. 189 401 Galliard v., 12 L. T. 356 486, 491 Gee v., 6H.&N. 211 460, 462 Nicholson v., 3 II. & C. 534 255 Sneesby v., 1 Q. B. D. 42 39 Vose v., 2 II. & K 728 220, 316, 356, 372 L. & F. E. E., Eden v., 14 B. Monr. 204 397 L. & I. Ey. v. Huffinann, 28 Ind. 287 91 Maddox, H. & T. C. Ey. v., Tex. , 21 Am. & Eng. E. E. Cas. 625 307 Seymour v., 16 Q. B. 327, 71 E. C. L. 344 TABLE OF CASES CITED. lxv Mackav v. N. Y. C. E. R, 35 N. *Y. 75 166 Mackin v. B. & A. R. R., 135 Mass. 201, 15 Am. & Eng. R. R. Cas. 196 309, 310, 335, 367 MacDoncjall v . C. R. R., 63 Cal. 431. 12 Am. & Eng. R. R. Cas. 143 436 Macfie, Abbott v., 2 H. & C. 744 39, 95, 187 Hughes v., 2 H. & C. 744 39, 95, 187 Mackev v, M. P. R. R., 18 Fed. Rep. 236 47 Maener v. Carroll, 46 Md. 212 177 Mahoney v. A. & St. L. R. R., 63 Me. 68 133 L. C. & L. R. R. v., 7 Bush (Kv.) 235 54, 431 v. M. R. R., 104 Mass. 73 330 N. P. R. R. v., 57 Penna. St. 187 95 Madden v. M. & St. L. Ry., 32 Minn. 303, 18 Am. & Eng. R. R. Cas. 63 348 Maginnis v. N. Y. C. R. R., 52 N. Y. 215 166 Mater v. A. & P. R. R., 64 Mo. 267 375 v.Vi.&St. P. Ry., 31 Minn. 401, 13 Am. & Eng. R. R. Cas 572 28 Maguire v. Middlesex R. R., 115 Masr. 239 284, 290 Maine, T. W. & W. Rr. v., 67 111. 29S 255 Mann, Davies v., 10 M. & W. 546 51 v. C. V. R. R., 55 Vt. 484, 14 Am. & Eng. R, R. Cas. 620 156 v. D. & H. C. Co.. 91 N. Y. 495, 12 Am. & Eng. R. R. Cas. 199 314,315,320,329,332 v. Preacher, 40 Vt. 332 502 v. S. C. & P. Ry., 46 Iowa 637 305 v. Weiand, 4 Weekly Notes of Case9 (Penna.) 6 83, 407 Mangan v. B. C. R R., 30 N. Y. 445 68 v. Atterton, L. R. 1 Kc 239 39, 94, 9 v. B. C. R. R., 38 X. V. 456 91 Mangans, C. V. B. B. v., 61 Ml. 53, 18 Am. & Eng. R. B. Cas. 182 264 Manknto, O'Learv?-.. 21 Minn. 65 422 Phelps v., 23 Minn. 276 422 K Manley v. St. H. Ry. & Canal Co., 2 H. & N. 840 149 Manser v. E. C. Ry., 3 L. T. N. S. 585 287, 238, 240 Malmsten v. M., H. & O. R. R., 49 Mich. 94, 8 Am. & Eng. R. R. Cas. 291 86 Maleck v. T. G. R. R., 57 Mo. 18 114 Manson, C, C, C. & I. R. 11. v , :. I Ohio St 451 287 Marble v. Ross. 1 24 Mass. 44 60 Muriel 1 v. S. \V. Ry., S C. B. X. S. 525, 98 E. C. L. 200, 225 Mantel v. C, M. & St. P. Ry., 33 Minn. 62, 19 Am. &"Eng. R. R. Cas. 362 166 Marsland, Nichols v., 2 Ex. D. 1 31 Mara, C, C. & C. R. R. v., 26 Ohio St. 185 418 March, G. & C. Co., Burrows v., L. R, 5 Ex. 66, 7 Id. 96 95 Marsden v. Haigh, 14 Weekly X'otes of Cases (Penna.) 526 373 Marshall v. Y. N. & B- Ry., 11 C. B. 655, 73 E. C L'. 206, 390, 392 Hubbard v., 117 U. S. 415 454 v. Strieker, 63 Mo. 308 323 St. L., K. C. & N. R. R. v., 78 Mo. 610, 18 Am. & Eng. R. R. Cas. 248 25, 466 v. C. & G. E. R. R., 4S HI. 475 418 Martin, C. C. R. R. v., 7 Colo. 17 Am. & Eng. R. R. Cas. 592 367 v. G. I. P. Ry., L. R. 3 Ex. 9 217 P. G: N. Ry., 16 C. B. 179, 81 E. C. L. 48, 254 Lyons v., 8 A. & E. 502, 35 E. C. L. 102 O. & R. V. R. R. v., 14 Neb. 295, 19 Am. & Eng. R. R. ( as 236 178, 183 i». Stille, 3 Whart. 337 395 Thurston v., 1 Mason 197 470 Maschek v. St. L. R. R., 71 Mo. 276, 2 Am. & Eng. R. R. Cas. 38 35,74,112 Mason, Lucas i\, L. R. 10 Ex. 2>1 102 v. Mi. P. Ry., 27 Kans. 83, 6 Am. & Eng. R. R. Cas. 1 190, 192 Masterson r. N. Y. C. & H. R. R. R.. 84 N. Y. 247, 3 Am. & Eng. R. R. Cas. 408 86, 155 Ixvi TABLE OF CASES CITED. Mast in r. B. & O R. R., 14 W. Ya. 180 205 Major, Chicago v., 18 111.349 489 Manzoni v. Douglass, 6 Q. B. D. I I", 434 Marcelles, E. & T. C. Ry. v., 59 Tex. 334, 1- Am. & Eng. R. R. Cas. 231 329,369 Mans r. N. P. R. R., Dak. , 17 Am. & Eng. R. R. Cas. 620 436 Mark v. St. P., M. & M. Ry.. 30 Minn.492, 12 Am. & Eng. R. R. Cas. 86 50, 62 Malone v. Hathaway, 64 N. Y. 5 321 Manning v. B., C. B. & N. R. R., 64 Iowa 240, 15 Am. & Eng.R. R. Cas. 171 306 Marion v. C, R. I. & P. Ry., 59 Iowa 423, 8 Am. & Eng. E. R. Cas. 177 109, 115 Manville v. C. & T. R. R., 11 Ohio St. 417 368 Maltby v. C. & W. M. Ry., 52 'Mich. 108, 13 Am. & Eng. R. R. Cas. 606 156 Mahlen v. L. S. & M. S. Ry., 49 Mich. 585, 14 Am. & Eng. R. R. Cas. 687 169, 173 Manlv v. W. & W. R. R., 74 N. C. 655 192 Marcott v. M., H. & O. Ry., 47 Mich. 1, 4 Am. & Eng. R. R. Cas. 548 168 Marker, St. L. & S. F. R. R. v., 41 Ark. 542 376 Marquette v. C. & N. W. Ry., 33 Iowa 562 109 Marsh v. Chickering, 101 N. Y. 396, 400 301, 373 v. S. C. R. R. 56 Ga. 274 416 423 Marten, M. P. R. R. Tex. ,' 22 Am. & Eng. R. R. Cas. 409 222 Martin, P. C & St. L. Ry. v., 82 ind. 47 (i, 8 Am. & Eng.R. R. Cas. 253 159, 169 H. & St. J. R. R. v., 11 Bradwell 386 213 v. Wallace, 40 Ga. 52 66 Mathieson, Weeins v., 4 Macq. H. L. 215 314 Mather, Holmes v., L. R. 10 Ex. 261 389 Matteson v. N. Y. C. R. R., 35 N. Y. 487 240, 275, 417 Martensen v. C, R. I. & P. Ry., 60 Iowa 705, 11 Am. & Eng. R. R. Cas. 233 376 M., A. & B. Ry. v. Stewart, 30 Ivans. 226, L3 Am. & Eng. R. R. ( 'as. 503 426 Massotli v. D. & 11. C. Co., 64 N. Y. 531 159 Matthias, St. L. & S. E. Ry. v., 50 Ind. 65 167 Matthews p. W. L. Waterworks Co., 3 Camp. 403 120 P. R. R. v., 36 N. J. L. 531 163, 166 Mayes, M. & A. R. R. v., 49 Ga. 355 125, 133, 141 Mavo v. B. & M. R. R., 104 Mass. 137 436 Mayor of Colchester v. Brooke, 7 Q. B. 339, 377, 53 E. C. L. 51, 54 of Manchester, Scott v., 1 H. & N. 59 122 of Liverpool, 14 Q. B. D. 890 103 Mayes v. C, R. I. & P. Ry., 63 Iowa 562, 8 Am. & Eng. R. R. Cas. 527 306 M. Board of Works, Dixon v., 7 Q. B. D. 418 34, 146 McAra, C, R. I. & P. Ry. v., 52 111. 296 275 McAllister v. B. & N. W. Ry., 64 Iowa 395, 19 Am. & Eng. R. R. Cas. 108 191, 196 McArthur v. Green Bay Co., 34 Wise. 139 65 McCaffertv v. S. D. & P. M. R. R., 6LN.Y. 178 122 McCall v. Forsythe, 4 W. & S. 179 390, 394 McCarthy, C. & St. P. R. R. v., 20 111. 385 133, 141 v. C, R. I. & P. R. R., 18 Kans. 45 409 McCauley, W r ard v., 4 T. R. 490 390 McClelland v. L., N. A.& C. Ry., 94 Ind. 276, 18 Am. & Eng. R. R. Cas. 260 25 McClurg, P. & 0. R. R. v., 56 Penna. St. 294 250, 251, 284 McClary p. I. C. Ry , 3 Neb. 44 32 McCullough v. Shoneman, 14 Weekly Notes of Cases (Penna.) 395 102 Hemingway v., 15 Weekly Notes of Cases (Penna.) 328 102 McCully v. Clarke, 40 Penna. St. 399 406, 447, 448 McCune v. N. P. Ry., 18 Fed. Rep. 875, 15 Am. & Eng. R. R. Cas. 172 305 TABLE OF CASES CITED. lx XV1J McCoy, L. & N. R. R. v., 81 Ky. 403, 15 Am. & Eng. R. R. Cas. 277 472 McComb v. N. C. R. R., 70 N. C. 178 416 McCool, O. & M. Packet Co. v., Ind , 8 Am. & Eng. R, R. Cas. 390 440 McCloskey, P. R. R. v., 23 Penna. St. 52(5 287, 492, 501 McCawley v. Furness Ry., L. R. 8 Q. B. 57 499 McCormiek, L. S. & M. S. Ry. v., 74 Ind. 440, 5 Am. & Eng. R. R. Cas. 474 300, 301, 302, 306, 345, 346 McCorkle v. C, R. I. & P. R. R., 61 Iowa 555, 18 Am. & Eng. R. R. Cas. 156 264, 265 McCosker v. L. I. R. R., 84 N. Y. 77, 5 Am. & Eng. R. R. Cas. 567 328, 344, 368 McCurdy, G. R. R. & B. Co. v., 45 Ga. 288 286, 287 McCue, Packet Co. v., 17 Wall. 508 372 McDaniel, W. Ry. v., 107 U. S. 454 313, 470 McDade, G. R. R. & B. Co. v., 59 Ga. 73, 60 Id. 119 McDonald v. C. & N. W. R. R., 26 Iowa 124, 29 Id. 170 250, 251, 254, 273, 431 McDonough, Schuylkill Nav. Co. v., 33 Penna. St. 73 148 McEnery, M. C. & C. Co. v., 8 Weekly Notes of Cases (Penna.) 81, 91 Penna. St. 185 301, 373, 468 McElwee, W. C. & P. R. R. v., 67 Penna. St. 311 422 McElroy v. M. & L. R. R., 4 Cush. 400 141, 233, 240 McElmurry, A. & S. R. R. v., 24 Ga. 75 60, 160 McGinnis v. C. S. B. Co., 49 Mich. 466, 8 Am. & Eng. R. R. Cas. 135 301, 302, 306, 338 McGearv v. C. R. R., 135 Mass. 363, 15 Am. & Eng. R. R. Cas. 407 91 McGowan, Gillespie v., 100 Penna. St. 144 183, 196 v. St. L. & I. M. R. R., 61 Mo. 528 306, 323, 363 McGrath v. Merwin, 112 Mass. 467 65 v. N. Y. C. R. R., 59 N. Y. 468, 63 Id. 522 163, 165 McGrath v. N. Y. & N. E. R. R.,^* Mass. , 18 Am. & Eng. R. R. Cas. 5 349, 378 McGuire, Bartonshill Coal Co. v., 3 Macq. H. L. 307 356 McFarlane v. The Queen, 7 Can. S. C. 216 413 Mclntyre v. N. Y. C. R. R., 37 N. Y. 287 287 McKee v. Bidwell, 74 Penna. St. 218 201, 422, 454 E. & T. H. R. R. v., 99 Ind. 519, 22 Am. & Eng. R. R. Cas. 366 110 McKeen, L. V. R. R. v., 90 Penna. St. 122 13, 454 McKean, C. & R. I. R. R. v., 40 111. 218 173 McKeever, M. S. R. R. v., 59 Cal. 294 404 McKenna, Gould v., 86 Penna. St. 297 31, 47 L. & N. R. R, v., 13 Lea (Tenn.) 280, 18 Am. & Eng. R. R. Cas. 276 40 McKenzie v. McLecd, 10 B. & C. 385, 25 E. C. L. 102, 104 McKinley v. C. & N. W. Ry., 44 Iowa 314 114 McKinney, Farmers' Bank v., 7 Watts 214 McKune v. C. S. R. R., Cal. , 17 Am. & Eng. R. R. Cas. 589, 21 Id. 539 322, 370, 377 McLaughlin v. Pryor, 4 M. & G. 48, 43 E. C. L. 386, 388 C. & A. R. R. v., 47 111. 265 188 McLain, A. V. R. R. v., 91 Penna. St. 442 389 McLeod, The Queen v., 8 Can. S. C. 1, 16 Am. & Eng. R. R. Cas. 301 413 v. Ginther, 80 Ky. 399, 8 Am. & Eng. R. R. Cas. 162, 15 Id. 291 317, 355, 416 McKenzie v., 10 B. & C. 385, 25 E. C. L. 102, 104 McLean v. Burbank, 11 Minn. 277 139 McLendon, S. & N. A. R. R. v., . C. Ry., 19 Ct. of Sess. Ca. 271 357 McPadden v. N.Y. C. R. R., 44 N.Y.478 _ 32, 233,240 McPherson, Hamilton v., 28 N. Y. 72 460 McQueen v. C. B. U. P. Ry., 30 Kans. 6.S9, 15 Am. & Eng. R. R. Cas. 226 211,307 McTighe, P. R. R. v., 46 Penna. St. 216 436 McDermott v. P. R. R., 30 Mo. 115 305 v. II. & St. J. R. R., 73 Mo. 516, 2 Am. & Eng. R. R. Cas. 85 314, 330, 416 McClary v. S. C. P. R. R., 3 Neb. 54 233 McDaniel, N. & C. R. R. v., 12 Lea (Tenn.) 386, 17 Am. & Eng. R. R. Cas. 60-1 381 McDonald, B., P. & C. R. R. v., 68 Ind. 316 280 McDonnell, B. C. P. R. R. v., 43 Md. 552 42 McDonoujrh v. M. R. R., 137 Mass. 210, 21 Am. & Eng. R. R. Cas. 354 291 Mel. R. R. v. Bolton, 43 Ohio St. 224, 21 Am. & Eng. R. R. Cas. 501 212, 371 M. C. & C. Co., McEnery v., 91 Penna. St. 185, 8 Weekly Notes of Cases (Penna.) 81 301, 373, 468 McCandliss, A., T. & S. F. R. R. v., 33 Kans. 366, 22 Am. & Eng. R. R. Cas. 296 377 McKinne v. C. S. R. R.. Cal. , 21 Am. & Eng. R. R. ( !as. 539 323 McKenna, L. & N. R. R. v., 7 Lea (Tenn.) 313, 2 Am. & Eng. R. R. Cas. 114 160 McKone v. M. C. R. R., 51 Mich. 601, 13 Am. & Eng. R. R. < las. 29 219, 254 McElligott, Dist. of Col. v., 117 U. S. 621 382 McKimble v. B. & M. R. R., 139 Mass. 542, 21 Am. & Eng. R R. Cas 213 405 McNeil, N. & J. R. R. v., 61 Miss. 434, 19 Am. & Eng. R. R. < 'as. 518 247 McQuilkin v. C. P. R. R., 64 Cal. 463, 10 Am. & Eng. R. R. Cas. 510 259 M. C. R. R., Hayes v., Ill U. S. 22S, 15 Am. & Eng. R. R. Cas. 394 27, 41, 198, 434 Hoar v., 70 Me. 65 188,210 v. Coleman, 28 Mich, 440 260, 264, 416 Chase v., 77 Me. 62, 19 Am. & Eng. R. R. Cas. 356 175, 444 v. Gilbert, 46 Mich. 176, 2 Am. & Eng. R. R. Cas. 230 314 v. Neubeur, 62 Md. 391, 19 Am. & Eng. R. R. Cas. 261 54, 163, 169 v. Smithson, 45 Mich. 212, 1 Am. & Eng. R. R. Cas. 101 302, 309, 346 Pzolla v., 54 Mich. 273, 19 Am. & Eng. R. R. Cas. 334 190, 436 White v., 61 Wise. 536, 18 Am. & Eng. R. R. Cas. 213 276, 424 Whitney v., 69 Me. 208 152 State v., 76 Me. 357, 19 Am. & Eng. R. R. Cas. 312 168, 436 Blake v., 70 Me. 60 314, 368 Howd v., 50 Miss. 178 301, 314 v Dolan, 32 Mich. 510 314, 356 Rodman v., 55 Mich. 57, 17 Am. & Eng. R. R. Cas. 521 346, 364, 366 Cassidy v., 76 Me. 488, 17 Am.' & Eng. R. R. Cas. 519 366, 381 Bottsford v., 33 Mich. 256 303 Bresnahan v., 49 Mich. 410, 8 Am. & Eng. R. R. Cas. 147 190 v. Caruth, 51 Miss. 77 469 Coolbroth v., 77 Me. 165, 21 Am. & Eng. R. R. Cas. 599 347 Corson v., 76 Me. 244, 17 Am. & Eng. R. R. Cas. 634 315 v. Austin, 40 Mich. 247 344 Hathaway v., 51 Mich. 253, 12 Am. & Eng. R. R. Cas. 249 346, 373 Peck v, Mich. , 19 Am. & Eng R. R. Cas. 257 105, 165 Knowlton v., 59 Wise. 278, 16 Am. & Eng. R. R. Cas. 330 65, 274 TABLE OF CASES CITED. lxix M. C. R. R.. McKone v , 51 Mich. 601, 13 Am. & Eng. R. R. Cas. 29 219, 254 Dakl v., 62 Wise. 652, 19 im. & Eng. R. R. Cas. 121 76 Grows v., 67 Me. 100 171 State v., 77 Me. 244, 21 Am. & Eng. R. R. Cas 216 405 M., C. S. & W. Ry., Bohan v., 61 Wise. 391, 19 Am. & Eng. R. R. Cas. 276 428 Meeks v. S. P. R. R., 52 Cal. 604 192 v. S. P. Ry, 56 Cal. 513, 8 Am. & Eng. R. R. Cas. 314 54, 91, 196 Meara v. Holbrook, 20 Ohio St. 137 135 Meath, Flanders v., 27 Ga. 358 74 Meek v. Penna. Co., 3S Ohio St. 632, 13 Am. & Eng. R. R. Cas. 643 42 Meier v. P. R. R., 64 Penna. St. 225 233, 235, 240, 246 Mellors v. Shaw, 1 B. & S. 446, 101 E. C. L. 319 Melton, L. & N. R. R. v., 2 Lea (Tenn.) 202 167 Merrill v. C. V. R, R., 54 Vt. 200, 11 Am. &Eng. R. R. Cas. 680 222, 372 Mersey Docks Trustees v. Gibbs, 3 H. & N. 164, 11 H. L. C. 686, L. R. 1 H. L. 93 37, 97, 129, 200, 201, 237, 329 Merchants' Bank, N. J. S. N. Co. »., 6 How. 344 501, 503 v. State Bank, 10 Wall. 604 454 Messmore v. N. Y. Shot Co., 40 N. Y. 422 460 Metropolitan Ry., Daniel v., L. R. 3 C. P. 216, 591, 5 H. L. 45 38, 129, 434, 442 Crafter !),LE.1C. P. 300 258 Gee v., L. R. 8 Q. B. 161 15, 63, 279, 280 v. Jackson, L. R. 3 App. Cas. 198, L. R. 10 C. P. 49, 2 C. P. D. 125, 9, 24, 278, 451, 453, 454 Richardson v., L. R. 3 C. P. 374 278 Stanton v., 14 Allen 485 65 Metn. D. Ry., Woodley v., 2 Ex. D. 384 349, 373 M. E. Rv., Lynch v., 90 N. Y.77, 12 Am. & Eng. R. R. Cas. 119 110 Merwin, McGrath v., 112 Mass. 467 65 Merry, Wilson v., 1 Sc. & Div. 320, 331 290, 320, 354, 383 Metz v. B. C. & P. R. R., 58 K Y. 61 135, 136 Meyer v. C. R. I. & P. R. R., 57 Iowa 555, 8 Am. & Eng. R. R. Cas. 527 302 v. M. P. R. R., 2 Neb. 320 36, 159, 195 v. Pacific R. R., 40 Mo. 153 54 Mehan v. S. B. & N. Y. R. R., 73 N. Y. 585 375 Messino, N. & C. R. R. v.. 1 Sneed (Tenn.) 220 207, 275 M. G. W. Ry., Broughton v., 1 I. C. L. 169 146 Cannon v., 6 Irish C. L. 199 280 M. H. & O. R. R., Malmstem v., 49 Mich. 94, 8 Am. & Eng. R. R. Cas. 291 86 Greenwald v., 49 Mich. 197, 8 Am. & Eng. R. R. Cas. 133 338, 364, 367 Marcott v., 47 Mich. 1, 4 Am. & Eng. R. R. Cas. 548 16!S Michie, C. & B. R. R. v., 83 111. 427 188, 208, 209 Middlesex R. R., Maguire v., 115 Mass. 239 284, 290 Middle Level Commrs., Collins v., L. R. 4 C. P. 279 39, 95 Midland Ry., Alton v. 19 C. B. N. S. 243, 115 E. C. L. 390. 391, 400, 413 Bell v., 10 C. B. N. S. 287, 100 E. C. L. 471 Blake v., 18 Q. B. 93, 83 E. C.L. 486,491,492, 493 Degg v., 1 H. & N. 773 212, 370, 371 Gibson v., 2 Ont. (Can.) 653 302, 345, 492 Home v., L. R. 8 C. P. 131 460, 462 Mytton v., 4 H. & N. 615 137 Readhead v., L. R. 2 Q. B. 412, 4 Id. 379 118, 231, 234, 237, 24( Tunney v., L. R. 1 C. P. 291 210, 368 Wright v., L. R. 8 Ex. 137 39, 140 Miles, L. R. & F. S. Ry. «., 40 Ark. 298, 13 Am. & Eng. R. R. Cas. 10 205, 275, 288, 440 Mills, N. C. Ry. v., 61 Md. 355, 19 Am. & Eng. R. R. Cas. 160 481 lxx TABLE Or CASES CITED. Miller v. P. & R. R. R-, 11 Weekly Notes of Cases (Penna.) 369 152 H. & G. N. R. R. v., 51 Tex. 270 338, 311 K. P. Ry. v., 2 Col. 442, 20 Am. Ry. Rep. 245 32, 440, 493 v. U. P. Ry., 17 Fed. Rep. 67, 12 Id. 600 307, 350, 382 v. B. & M. R. R., 128 Mass. 8, 1 Am. & Eng. R. R. Cas. 141 366 C. & N. W. Rv. v., 46 Mich. 532, 6 Am. & Eng. R. R. Cas. 89 75, 169 G. W. R. R. v., 19 Mich. 305 108 L. S. & M. S. Ry. v., 25 Mich. 274 86, 169 St. L , A. & T. H. R. R. v., 43 111. 199 135 Milligan v. Wedge, 12 A. & E. 737, 40 E. C. L. 102, 122, 123, 124 Millimann v. N. Y. C & H. R. R. R., 66 N. Y. 642 74, 263, 292 Mill v. Hawker, L. R. 9 Ex. 309, 10 Id. 92 111 Mining Co., Carpenter v., 65 N. Y. 43 134 Milam, L. & N. R. R. v., 10 Tenn. 223, 13 Am. & Eng. R. R. Cas. 507 158 Mills, C. W. D. Ry. v.. 105 111. 63, 11 Am. & Eng. R, R. ( as. 128 263, 274 Miltenberger v. Logansport Ry., 106 U. S. 312 4 Miranda, C. & N. W. Ry. v., 108 111. 576, 18 Am. & Eng. R. R. Cas. 564 384 Missouri R. R., Boland v., 36 Mo. 484 54, 69 Mitchell o. Crassweller, 13 C. B. 237, 76 E. C. L. 102, 104 v. Alestree, 1 Ventr. 295 434 C. R. R. v., 63 Ga. 177, 1 Am. & Eng. R. R. Cas. 145 305, 383 v. C & G. T. Ry., 51 Mich. 236, 18 Am. & Eng. R. R. Cas. 176 262, 265, 270, 434, 443 Raisin v., 9 C. & P. 613, 38 E. C. L. 54 Ravner v., 2 C. P. D. 357 102 r. W. & A. R. R., 30 Ga. 22 263 R. R. v., 11 Heisk. 400 439 Millikens, U. P. R. R. v., 8 Kans. 647 313 M. K. & T. R. R., Brown v., 64 Mo. 536 20b Doss v., 59 Mo. 27, 8 Am. Ry. Rep. 462 220, 264, 471 v. Long. 27 Kans. 684 156 v. "Weaver, 16 Kans. 456 470 M. L. S. & W. Rv., Howland v., 54 Wise. 226, 5 Am. & Eng. R. R. Cas. 578 349, 368 Bohen v., 58 Wise. 30, 15 Am. & Ent>'. R. R. Cas. 374, 61 Wise. 391, 19 Am. & Eng. R. R. Cas. 276 167 Bussian v., 56 Wise. 325, 10 Am. & Eng. R. R. Cas. 716 152, 508 M. N. Co. v. Coons, 6 W. & S. 101 146 Mobile L. Ins. Co. v. Brame, 95 U. S. 754 399 Mock, C, & A. R. R. v., 88 111. 87 434 Modglin, 1. C. R. R. v., 85 111. 481 196, 377 Moffatt v. Bateman, L. R. 3 P. C. 115 293 Mohnev v. Cook, 26 Penna. St. 342 65 Monaghan, C. & P. S. Ferry Co. v., 10 Weekly Notes of Cases (Penna.) 46 282, 440 Monday, Indiana R. R. v., 21 Ind. 48 501 Moon v. R. & A. R. R., 78 Va. 745, 17 Am. & Eng. R. R. Cas. 531 S. Ex. Co. v., 39 Miss. 822 501 Moore r. N. Ry., L. R. 8 Q. B. 36 110 G. R. R.V, 59 Tex. 64 v. P. R R,, 11 Weekly Notes of Cases (Penna.) 310, 99 Penna. 301, 4 Am. & Eng. R. R. Cas. 569 73, 190, 196 v. F. R. R., 4 Gray 465 108 v. P., W. & B. R. R., 16 Weekly Notes of Cases (Penna.) 53 157, 169, 193 v. C, St. L. & N. O. R. R., 59 Miss. 243, 9 Am. & Eng. R. R, Cas. 401 416 T. W. & W. Ry. v., 77 111. 217 299, 306, 446 R. & D. R. R. v., 78 Va. 93, 15 Am. & Eng. R. R. Cas. 239 307 A., T. & S. F. Rv. v., 29 Kans. 632, 11 Am." & Eng. R. R. Cas. 243, 31 Kans. 197, 15 Am. & Eng. R. R. Cas. 312 329, 369 TABLE OF CASES CITED. lxxi Moore v. W., St. L. & P. Ev., 84 Mo. 481, 21 Am. & Eng. K. K. Cas. 509 347 C, H. & H. Ry. v., 59 Tex. 64, 10 Am. & Eng. R. R. Cas. 745 91 v. C. R. R., 47 Iowa 688 169 Rapho v., 68 Penna. St. 404 148 Morgan, P. R. R. v., 82 Penna. St. 135 195 v. V. of N. Ry., 5 B. & S. 570, 117 E. C. L., L. R. 1 Q. B. 149 360, 368 Morey v. L. V. Coal Co., 55 Iowa 671 349 Morison, Joel v., 6 C. & P. 501, 25 E. C. L. 102 Moriartv v. L. C. & D. Ry., L. R. 5 Q. B. 314 423 Morrison v. Davis, 20 Penna. St. 171 31 v. Erie Ry., 56*N. Y. 302 103 Morganstern, I. & St. L. Ry. v., 106 111. 216, 12 Am. & En 2 . R. R. Cas. 228 364 Morris v. E. R. R., 126 Mass. 377 196 v. Wiggins Ferry Co., 43 Mo. 380 54 R. & D. R. R. v., 31 Gratt. 200 265 v. C. B. & Q. R. R., 45 Iowa 29 191, 196, 469 v. C, R. I. & P. Rv., 65 Iowa 727, 19 Am. & Eng. R. R. Cas. 180 409 v. Lichfield, 35 N H. 271 65 Morse v. Duncan, U. S. C. C S. D. Miss., 8 Am. & Eng. R. R. Cas. 374 466 M. & St. L. Ry. v., 30 Minn. 465, 11 Am. & Ens. R. R. Cas. 168 349, 420, 421, 422 v. Slue, 1 Ventr. 238 498 Moss v. P. R. R., 49 Mo. 167 313, 314 Mowry v. Whitney, 14 Wall. 434 471 Mowery, I. R. R. v., 36 Ohio St. 418, 3 Am. & Eng. R. R. Cas. 361 15, 62, 274, 439 Montgomery, L. & M. M. Ry. v-, 7 Ind. 475 48 Moranda, U. & N. W. Ry. v., 93 111.302 370 Moyer, Norristown v., 67 Penna. St. 355 148 Mooney v. II. R. R. R., 5 Robert- son (N. Y.) 48 86 Moon v. R. & A. R. R., 78 Va. 745, 17 Am.& Eng. R. R. Cas. 531 324, 369, 370 Montclair r. Dana, 107 U. S. 162 454 M. P. R. R, Mackey v., 18 Fed. Rep. 236 47 Mever v., 2 Neb 320 36, 159, 195 Yawter v., 84 Mo. 679, 19 Am. & Eng. R. R. Cas. 176 409 v. Wilson, 28 Kans. 639 160 v. Marten, Tex. , 22 Am. & Eng. R. R. Cas. 409 282 Nagel v., 75 Mo. 653, 10 Am. & Eng. R. R. Cas. 7U2 69, 186, 480 Hall v., 74 Mo. 298, 8 Am. & Eng. R. R. Cas. 106 329, 369 v. Condon, 78 Mo. 567, 17 Am. & Eng. R. R. Cas. 583 330, 369 Collier v., 62 Tex. 318, 18 Am. & Eng. R. R. Cas. 281 276 v. Halev, 25 Kans. 35, 5 Am. & Eng. R. R. Cas. 594 299, 319, 383 v. Lyde, 57 Tex. 505, 11 Am. & Eng. R. R. Cas. 188 346, 376, 432 Mason v., 27 Kans. S3, 6 Am. & Eng. R. R. Cas. 1 190, 192 v. Nichols, 8 Kans. 505 217 Powell v., 76 Mo. SO, 8 Am. & Eng. R. R. Cas. 467 158, 169 Rucker v., 61 Tex. 499, 21 Am. & Eng. R. R. Cas. 245 283 Rutter v., 81 Mo. 169, 21 Am. & Eng. R. R. Cas. 21 2 406 M. R. R. v. Blakelv, 59 Ala. 477 233 Festal v., 109 Mass. 720 275, 439 Mahoney v., 104 Mass. 73 380 Nichols v., 106 Mass. 463 274 Oram v., 112 Mass. 38 274 Wilton v., 107 Mass. 108, 125 Id. 130 209 Brown v., 64 Mo. 536 188 v. B. & C. R. R., 115 Mass. 347 133 Geddes v., 103 Mass. 391 282 Dougherty c, 81 Mo. 325, 21 Am. & Eng. R. R. Cas. 497 282, 440 M. Rv., Dawson v., 7 H. & N. 1037 274,439 Cliff v., L. R. 5 Q. B. 258 165, 166 lxxii TABLE OF CASES CITED. M. Ry., Phyfe v., 30 Hun (N. Y.) 277 25 King y., 11 Fed. Rep. 277, 8 Am. & Eng. R. R. ('as. 119 330, 3G9 Lowery »., 99 N. Y. 158 20, 152 Levov v., 3 Ont. 623, 15 Am. & Eng. R. R. Cas. 478 166 Foulkes «., 4 C. P. D. 267, 5 Id. 157 217,218,206,269,390 McDonough v., 137 Mass. 210, 21 Am. &Eng. R. R. Cas. 354 291 Potter v., 30 L. T. N. S. 765, 32 Id. 36 400 Searles v., 101 N. Y. 661 435, 441 M. R. & L. E. Ry., Whaalan v., 8 Ohio St. 249 356, 368 v. Barber, 5 Ohio St. 541 301 M. Ry. & C. Co , Perren v., 11 C. B. 855, 73 E. C. L. 396 M. St. Ry., Dahlberg v., 32 Minn. 404, 18 Am. & Eng. R. R. Cas. 202 285 v. O, M. & St. P. Ry., 33 Minn. 62, 19 Am. & Eng. R. R. Cas. 362 168 M. S. & L. Ry., Austin v., 10 C. B. 473, 70 E. C. L. 498 Bayley v., L. R. 7 C. P. 415, 8 Id. 148 106, 108, 109 Gill v., L. R. 8 Q. B. 186 217 Rigg v., 12 Jur. N. S. 525 259 M. S. R. R. v. McKeever, 59 Cal. 294 404 M. S. & N. J. R. R. v. Lantz, 29 Ind. 528 240 Woodward v., 10 Ohio St. 121 409 M. S. & N. I. Ry., Eissell v., 22 N. Y. 258 43, 138, 414 M. S., J. & A. Ry. v. Fullerton, 14 C. B. N. S. 54, 108 E. C. L. 151, 153 Muhling, O. & M. R. R. v., 30 111. 9 207, 210 Mulhado v. B. C. R. R., 30 N. Y. 370 274, 424 Mulhair, W. P. P. Ry. Co. v., 6 Weekly Notes of Cases (Penna.) 508 434 Muldowney v. I. C R. R., 36 Iowa 462, 39 Id. 615 50, 373, 374, 376 Mulherrin, D , L. & W. R R. v., 44 Penna. St. 375, 81 Id. 300 190, 227, 228 Mullen v. P. & S. M. S. S. Co., 78 Penna. St. 25 320, 322, 416 Mulliner, W. E. Canal Co. v., 68 Penna. St. 357 146 Munger, T. K. R. v., 5 Denio 267 50 Muim v. Illinois, 94 U. S. 130 4 Munroe, C. & A. R. R. v., 85 111. 25 373 Munson, Improvement Co. v., 14 Wall. 442 454 Durgin v., 9 Allen 396 305 Mumford, C. C. Ry. v., 97 111. 560, 3 Am. & Eng. R. R. Cas. 312 274, 290 Murch v. C. R. R., 29 N. II. 9 ' L38, 251, 292 Murdock v. B. & A. R. R., 133 Mass. 15, 6 Am. & Eng. R. R. Cas. 406 395, 467 Murphy v. Crossan, 98 Penna. St. 495 300 v. B. & A. R. R., 88 N. Y. 140, 8 Am. & Eng. R. R. ( as. 510 306, 369 v. Deane, 101 Mass. 466 436 v. C , R. I. & P. R. R., 45 Iowa 661 436 v. N. Y. C. & H. R. R. R., 88 N. Y. 445, 8 Am. & Eng. R. R. Cas. 490 493 v. Smith, 19 C. B. N. S. 361, 115 E. C. L. : 120, 340 v. St. L. & I. M. Ry., 71 Mo. 202 314 C, & A. R. B. R. v., 53 111. 336 368 B.&A.R.R.?>.,133Mass.l21 179 Murray v. Currie, L. R. 6 C. P. 24 102, 122 v. Phillips, 35 L. T. 477 300 Randleson v., 8 A. & E. 109, 35 E. C. L. 99, 123 v. S. C. R. R., 1 McMullan 385 350, 356, 366 Muschamp v. L. & P. Ry., 8 M. & W. 421 137 Muster v. C , M. & St. P. Ry., 61 Wise. 325, 18 Am. & Eng. R.R. Cas. 113 102, 256,299, 318,443 Mulligan v. Curtis, 100 Mass. 512 70 M. V. R. R., Smith v., 13 Minn. 30 372 Myers v. Snyder, Brightly N. P. 489 148 C. V. R. R. v., 55 Penna. St. 288 212, 371 Emblen v., 6 II. & N. 54 471 II. & T. C. R. R. v., 55 Tex. 110, 8 Am. & Eng. R. R. Cas. U 314,346,374 TABLE OF CASES CITED. lxxiii Myers v. R. & D. R. R., 87 X. C. 345, 8 Am. & Eng. K. R. Czs. 293 152 Myttcn v. Midland Ry., 4H.& N. 615 137 M. & A. R. R. v. Mayes, 40 Ga. 355 125, 133, 141 M. &. C. R. R. v. Green, 52 Miss. 779 460 v. Reeves, 10 Wall. 176 31 v. Thomas, 51 Miss. 637 374, 375 Ragsdale v.. 3 Baxter (Tenn.) 426 323 Atkinson v., 15 Ohio St. 21 134 v. Hunter, 11 Wise. 160 156 v. Whitrield, 44 Miss. 466 257 v. Copeland, 01 Ala. 3. 6 266 283 M. & B. R. R., Salter v., 88 N.' Y. 42, 8 Am. & Eng. R. R. Cas. 437 159 M. & I. Ry., Gillenwater v., 5 Ind. 339 208 M. & E. R. R., Haslan v., 4 Vroom 147 168 State v., 25 X J. L. 437 151 M. & L. R. R., Smith v., 18 Fed. Rep. 304 367. 374 Gavett v., 16 Gray 501 63, 265 v. Stringfellow, 44 Ark. 32, 21 Am. & Eng. R. R. Cas. 374 135, 264 M. & M. R. R. v. Finney, 10 Wise. 388 108, 416 v. Ashcroft, 48 Ala. 16, 49 Id. 305 276, 420, 471 Ball » , 67 Ala. 206 ' 367 Chamberlain v., 11 Wise. 238 216, 355, 369 Smoot v., 67 Ala. 13 303 v. Smith, 59 Ala. 245 363 v. Crenshaw, 65 Ala. 566, 8 Am. & Eng. R. R. Cas. 310 69 Donaldson v., 18 Iowa 280 431, 432, 493 M. & O. R. R. v. Taft, 28 Mich. 289 314 Rogers v., Lea (Tenn.) , 12 Am. & Eng. R. R. Cas. 412 135 v. Thomas, 42 Ala. 672 306 v. Hopkins, 41 Ala. N. S. 489 502, 503 M. & P. R. R., Cooper v., 23 Wise. 668 315 Wilson v., 18 Ind. 226 367 M. & P., r. C. U. R., Spencer v., 17 Wise. 187 285 M. £ P., M. C. R. R., Delamatyr v., _4 Wise. 578 264 Langhoff v , 19 Wise. 4S9 159 M. & St. L. Ry., Schemer v., 32 Minn. 125, 518, 19 Am. & Eng. R. R. Cas. 173 19i, 431, 432, 492 Fay v., 30 Minn. 231, 11 Am. & Eng. R. R. Cas. 193 309, 330 Freeman v., 28 Minn. 443, 7 Am. & Eng. R. R. Cas. 410 133 Greene v., 31 Minn. 248, 15 Am. & Eng. R. R. Cas. 214 306 Madden v., 32 Minn. 303, 18 Am. & Eng. R. R. Cas. 63 348 Ransier v., 32 Minn. 331, 21 Am. & Eng. R. R. Cas. 601 307, 337 Russell v., 32 Minn. 230 377 Sweeney v., 33 Minn. 153, 22 Am. & Eng. R. R. Cas. 302 374 Tierney v., 33 Minn. 311, 21 Am. & Eng. R. R. Cas. 543 330, 347, 369 Eldredge v., 32 Minn. 253, 21 Am. & Eng. R. R. Cas. 454 443 Brown v., 31 Minn. 553, 15 Am. & Eng. R. R. Cas. 333 366 v. Morse, 30 Minn. 465, 11 Am. & Eng. R. R. Cas. 168 349, 420, 421, 422 Kolsti v., 32 Minn. 133, 19 Am. & Eng. R. R. Cas. 140 186 M. & S. Kv, Whittaker v., L. R. 5GP. 464 n. 261,262 M. & St. P. Ry. v. Arms, 91 U. S. 495 8, 471 Butler v., 28 Wise. 4S7 166, 173 v. Kellogg, 94 U. S. 469, 475 10, 13 Lucas v., 33 Wis. 41 209, 210 Keffe v., 21 Minn. 207 186 Rothe v., 21 Wise. 256 173 Schmidt v., 23 Wise. 186 28, 69, 19S M. & W. R. R. v. Davis, 18 Ga. 679, 19 Id. 437 54 v. Davis, 27 Ga. 113 60 v. Johnson, 38 Ga. 409 284 Sims v., 28 Ga. 93 193 v. Winn, 19 Ga 440 54 v. Winn, 26 Ga. 250 15 lxxiv TABLE OF CASES CITED. PAGE M. & W. P. R. U. v. Boring, 51 Ga. 582 134 Nagel t>. M. P. Rv., 75 Mo. 653, in Am &Eng.E. R. Cas. 702 69, 186, 480 Nagle v. A. V. R. E., 88 Penna. St. 35 70 Napheys, U. L. & W. R. R. ?;., 90 Penna. St. 135, 1 Am. & Eng. R. R. Cas. 52 270, 271, 443 Naylor v. C. & N. W. Ry., 53 Wise. 661, 5 Am. & Eng. R. R. Cas. 460 343, 349 N. A. & H. Ry., Hicks v., 4 B. 6 S. 403 n., 1 1 6 E. C. L. 494 N. A. & S. R. R., Fitzpatrick v., 7 Ind. 436 367 N. B. Cordage Co., Coombs v., 102 Mass. 522 338 N. B. & T. R. R., Lucas v., Gray 65 220 N. B. R. R., Ladd v., 119 Mass. 412 306, 307 N. B. & M. R. R., Wheaton v., 36 Cal. 593 233 N. C. C. R. R., Hardy v., 74 N. C. 734 303 N. C. R. R., Lambeth v., 66 N. C. 494 264, 287 McComb v., 70 N. C. 178 416 Welker v., 1 Weekly Notes of Cases (Penna.) 210 31 Shauck v., 25 Md. 462 323 Turner v., 63 N. C. 522 65 Poole v., 8 Jones (N. C.) 340 75 v. Husson, 13 Weekly Notes of Cases (Penna.) 361, 12 Am. & Eng. R. R. Cas. 241 346 Gibson v., 22 Hun 289 335, 367 Painton v., 83 X. Y. 7, 5 Am. & Eng. R. R. Cas. 454 307, 346 Hawley v., 82 N. Y. 370, 2 Am. & Eng. R. R. Cas. 24S 3U5, 375, 382 v. Mills, 61 Md. 355, 19 Am. & Eng. R. R. Cas. 160 481 r. The State, 29 Md. 420 29 N. C. Ry., McMahon v., 39 Md. 69, 73, 447 v. State, 54 Md. 113, 6 Am. & Eng. R. R. Cas 66 170 Ilanratliy v., 46 Md. 280 307 N., C. & St. L. R. R. v. Wheless, 10 Lea (Tenn.) 741, 4 Am. & Eng. R. R. Cas. 633, 15 Id. 315 346, 367 N., C. & St. L. R R., Jackson v., 13 Lea (Tenn.) 491, 19 Am & Eng. R. R. Cas. 433 24, 151 v. Foster, Tenn. , 11 Am. & Eng. R. R. Cas. 180 335, 367 N. Co., Stiles v., 33 L. J. N. S. 311 145 Nebraska City v. Campbell, 2 Black (S. C.) 590 473 Needham v. S. F. & S. J. R. R., 37 Cal. 409 54 v. G. T. R. R., 38 Vt. 294 486 Nehrbas v. C. P. R. R., 62 Cal. 320, 14 Am. & Eng. R. R. Cas. 370 166 Neir v. W. P. Ry., 12 Mo. App. 35 481 Nelson v. A. & P. R. R., 68 Mo. 593 55, 265 v. V. C. R. R., 26 Vt. 717 133 141 v. C. M. & St. P. Ry., 60 Wise. 320, 22 Am. & Eng. R.R. Cas. 391 373 N. E. Rv., Dickinson v., 2 H. & C. 735 492 Buxton v., L. R. 3 Q. B. 549 138 Graham v., 18 C. B. N. S. 229,1 14 E. C. L. 221, 308,372 Hall v., L. R. 10 Q. B. 437 500, 502 Hammond v., 6 S. C. 130 216 Hetherington v.. 9 Q. B. D. 160 489 Holmes v., L. R. 4 Ex. 254, 6 id. 123 223, 372 Reynolds v., Roscoe's N. P. 591 217 Robson v., L. R. 2 Q. B. D. 87, 10 Id. 371 266, 26S, 451, 454 Sykes v., 32 L. T. N. S. 199 489 Swainson v., 3 Ex. D. 341 372 Thompson v., 2 B. & S. 106, 110 E.G. L. 17, 54, 200 Rose v., 2 Ex. D. 248 266, 268 Oliver v., L. R. 9 Q. B. 409 156 Waite v., El. Bl. & El. 729, 96 E. C. L. 84, 88, 94 Wanless v., L. R. 6 Q. B. 481 164 Neubeur, M. C. R. R. v., 62 Md. 391, 19 Am. & Eng. R. R. < as. 261 54, 163, 169 Newbold, Lygo v., 8 Ex. 302 91 Newell, C, C, C. & I. R. R. v., 75 Ind. 542, 8 Am. & Eng. R. R. Cas. 377 240, 275, 276, 439 TABLE OF CASES CITED. lxxv PAGE Newell v. Smith, 49 Vt. 260 130 Newsome, G. R. R. v., 60 Ga. 492, 66 Id. 57 151, 416 Newson, Randall v., 2 Q. B. D. 102 233 v. N. Y. C. R. R., 29 N. Y. 3S3 224 New River Co., Drew v., 6 C. & P. 754, 25 E. C. L. 148 New Gas Co., Allen v., 1 Ex. D. 251 356 Newberry, Kevstone Bridge Co. v., 96 Penna St. 243 323 Nevin v. P. P. C. Co., 106 111. 222, 11 Am. &Eng. R. R. ( las. 92 391 N. H. R. R., Chapman v., 19 N. Y. 341 86 N. H. & N. Co., Coplev v., 136 Mass. 6, 19 Am. & Eng. R. R. Cas. 373 173 N. H. S. & T. Co. v. Yanderbilt, 1 6 Conn. 421 54 N. H. & N. R. R., Gardner v., 51 Conn. 143, IS Am. & Eng. R. R. Cas. 170 188, 208, 209 Town of Hamden v., 27 Conn. 158 412 Keith i'., 140 Mass. 175, 23 Am. & Eng. R. R. Cas. 421 310 Nichols v. Marsland, 2 Ex. D. 1 31 v. M. R. R., 106 Mass. 463 274 v. .Smith, 115 Mass. 332 136 M. P. Ry. v., 8 Kans. 505 217 Nicholls v. G. S. & W. Ry., 7 Ir. C. L. 40 262 v. G. W. Ry., 27 Up. Can. (Q. B.) 382 86 Nicholson v. L. & Y. Rv., 3 H. & C. 534 255 v. Erie Ry., 41 N. Y. 525 40, 177, 178 v. Willan, 5 East 507 498 Nickerson, Severy v., 120 Mass. 306 177 Nickless, O. & M. Ry. v., 71 Ind. 271 205, 208 Nitro-Pliosphate Co. v. L. S. & St. K. Co., L. R. 9 Ch. D. 503 41 Nieto v. Clark, 1 Clif. 145 114 Nix, S. C. R. R. v.. 68 Ga. 572 27, 409 N. J. R. R.. Bennett v., 36 N. J. Law 22.") 86 Brokaw v., 3 Vroom 328 108 v. Kennard, 21 Penna. St. 203 284 N. J. R. R., Liscomb v., 6 Lans. 75 254 v. Pollard, 22 Wall. 341 282, Uo v. Palmer, 4 Vroom (N. J.) 90 136, 242 West v., 3 Vroom 91 166 N. J. R. & T. Co., Pollard v., 101 U. S. 223 395 N. J. S. Co., Caldwell v., 47 N. Y. 290 235 N. J. S. N. Co., Dorr v., 4 Sandf. S. C. 136 501 Hall v., 15 Conn. 539 502 v. Merchants' Bank, 6 How. 344 501, 503 N. J. S. Co., Cleveland v., 68 N. Y. 306 204, 213 N. K. Rv., Withers v., 3 H. & N. 969 29, 32 N. L. Rv., Bridges v., L. R. 6 Q. B. 377, 7 H. L. 232 6, 261, 262, 266, 268, 450, 454 N. M. R. R., Kennedy v., 36 Mo. 351 54 N. N. Co., Emerson v., 2 Ont, (Can.) 528 110 Noell, B. & O. R. R. v., 32 Grat. 394 493 Noel, P. C. & St. L. R. R. v., 77 Ind. 1 1 0, 7 Am. & Eng. R. R. Cas. 524 436 Nolan v. B. C. & N. R. R., 87 N. Y. 63, 3 Am. & Eng. R. R. Cas. 463 290 Nolthenis, Street R R. v., 40 Ohio St. 376, 19 Am. & Eng. R. R. Cas. 191 150 Nolton v. W. R. R., 15 N. Y. 444 216 N. O. M. Ins. Co. v. N. O., J. & G. N. R. R, 20 La. 302 501 N. O. R. R. v. Statham, 42 Miss. 607 263, 292 N. O. C. R. R-, Wardle v., 35 La. An. 202, 13 Am. & Eng. R. R. Cas. 60 274 N. O. & C. R. R., Damont v., 9 La. An. 441 63, 265 Herrmann v., 11 La. An. 5 398 Hubeuer v., 23 La. An. 492 265 Hubgh v., 6 La. An. 495 306, 374, 398 Varillat v., 10 La. An. 88 471 Weeks v., 32 La. An. 615 74 Norton, L. S. N. R. R. v., 24 Penna. St. 465 56, 60, 61, 190, 191 v. E. R. E., 113 Mass. 366 153 Norristown v. Moyer, 67 Penna. St. 355 148 Northrop v. Ry. P. A. Co., 43 N. Y. 516 241 lxxvi TABLE OF CASES CITED. N. O., J. & G. N. R. R., N. O. M Ins. Co. v., 20 La. 302 501 v. Bailey, 40 Miss. 395 224 Albritson, 33 Miss. 242 274, 439 v. Hurst, 36 -Miss. 660 467, 471 N. O., J. & N. Ry. v. Hughes, 49 .Miss. 258 314 N. O., J. & S. R. R., Laicher v., 28 La. An. 320 75 N. O., M. & C. R. R, v. Hanning, 15 Wall. 649 123, 201 N. O., St. L. & C. R. R. v. Burke, 53 Miss. 200 281 N. O. & N. E. R. R. i>. Reese, 61 Miss. 5S1 122 N. P. Ry., Herbert v., Dak. , 8 Am. & Eng. R. R. Cas. 85, 116 U.S. 642 307,331 Kresanowski v., 18 Fed. Rep. 229 374 McCune v, 18 Fed. Rep. 875, 15 Am. & Eng. R. R. Cas. 172 305 Gilmore v., 18 Fed. Rep. 866, 15 Am. & Eng. R. R. Cas. 304 323, 329, 369 N. P. R. R., Drayton v., 10 Weekly Notes of Cases (Penna.) 55 152 v. Heilman, 49 Penna. St. 60 168 v. Kirk, 90 Penna. St. 15, 1 Am. & Eng. R. R. Cas. 45 230, 490, 494 v. Mahoney, 57 Penna. St. 187 95 Mares v., Dak. , 17 Am. & Eng. R. R. Cas. 620 436 Finney v., Dak. , 12 Am. & Eng. R. R. Cas. 17 454 Ricard v., 89 Penna. St. 1 95 228, 229 v. Robinson, 44 Penna. St. 175 151, 486 Wilson v,, 26 Minn. 278 15, 233, 436 N. P. & O. C. M. Co. v. L. & St. K. Docks Co., 9 Ch. D. 515 33 N. Ry., Edgar v., 4 Ont. (Can.) 201, 16 Am. &Eng.-R. R. Cas. 347 ; 11 Ont. App. 452, 22 Am. & Eng. R. R. Cas. 433 262, 264, 266 Alexander v., 33 Up. Can. (Q. B.) 474, 35 Id. 453 502 Moore v , L. R. 8 Q. B. 36 110 Watson v., 24 Up. Can. (Q. B.) 98 286 N. R. Co., Hill v., 9 B. & S. 303 39, 95 N. R. R., Fifield v., 42 N. H. 225 305, 344 Fuller v., 21 Conn. 557 263, 481 Wylde v., 53 N. Y. 156 413 N. S. Ry., Peek v., 10 IT. L. 473 499 N. S. S. I. Ferry, Crocberon v., 56 N. Y. 656 258 Nugent v. Smith, 1 C. P. D. 425, 444 29, 31 Nurdin, Lynch v , 1 Q. B. 29, 41 E. C. L. 39, 66, 90, 94, 187 N. Y. C. R. R., Alden v., 26 N. Y. 102 235, 240 Bissell v., 25 N. Y. 442 502 Boldt v., 18 N. Y. 432 356, 375 Bowen v., 18 N. Y. 408 246 Brown v., 34 N. Y. 404, 32 Id. 600 166, 246, 275 Buel v., 31 N. Y. 314 15, 62 Bryan v., 31 Barb. 335 86 Cragin v., 51 N. Y. 64 502 Deyo v., 34 N. Y. 9 47 v. Lock wood, 17 Wall 357 8, 204, 233, 501, 505 Denny v., 13 Gray 481 31 Matteson v., 35 N. Y. 487 240, 275, 417 Perkins v., 24 N. Y. 196 8, 502 Mackay v., 35 N. Y. 75 166 Poucher v., 49 N. Y. 263 502 Richardson v., 45 N. Y. 846 166 Richardson v., 98 Mass. 85 409 Beisiegel v., 40 N. Y. 9 157, 162, 163 Smith v., 24 N. Y. 222 502, 503 Reed v., 56 Barb. 493, 45 N. Y. 574 240, 420, 421, 422 Stinson v., 32 N. Y. 333 502 Sutton v., 66 N. Y. 243 177, 178 Wells v., 24 N. Y. 181 502 Hamilton v , 51 N. Y. 100 416 Owen v., 1 Lans. 108 302, 345 Wright v., 25 N. Y. 565 323, 356 Lanning v., 49 N. Y. 521 314, 330, 382 Mclntyre v., 37 N. Y. 287 287 McPadden v., 44 N. Y. 478 32, 235, 240 Renwick v., 36 N. Y. 132 163, 169 McGrath v., 59 N. Y. 468, 63 Id. 522 163, 165 W T eber v., 58 N. Y. 459 163 Maginnis v., 52 N. Y. 215 166 Newson v., 29 N. Y. 383 224 Dillave v., 56 Barb. 30 253 Lucas v., 21 Barb. [N. Y.) 245 398 TABLE OF CASES CITED. lxx XV11 N. Y. C. K. E., Stillvvell v., 34 N. Y. 29 166, 419 Hulburt v., 40 N. Y. 145 253 N. Y. C. & H.. R. R.R., Hoffman v., 75 N. Y. 605 253 v. Hoffman. 87 N. Y. 25, 4 Am. & Eng. R. R. Cas. 537 109, 189 Kin-? v , 66 N. Y. 181 122 Cosgrove v., 87 N. Y. 88, 6 Am. & Eng. R. R. Cas. 35 160, 161 Connelly v., 88 N. Y. 346, 8 Am. & Eng. R. R. Cas. 459 170 Davis v., 47 N. Y. 400 169 Clesthorn v., 56 N. Y. 44 314 Jones v.. 28 Hun 364, 92 N. Y. 628 310 Keating v., 49 N. Y. 673 273 Keating v., 98 N. Y. 128 263 Pakalinsky v., 82 N. Y. 424, 2 Am. & Eng. R. R. Cas. 251 162, 163 Stackus v., 79 N. Y. 464 169 Thorpe v., 76 N. Y. 402 136, 243 Schwier v., 90 N. Y. 558, 14 Am. & Eng. R. R. Cas. 656 193 Murphy v., 88 N. Y. 445, 8 Am. & Eng. R. R Cas. 490 493 Barry v., 98 N. Y. 289, 13 Am. & Eng. R. R Cas. 615 69, 162, 179 Dowling v., 90 N. Y. 670, 12 Am. & Eng. R. R. Cas. 73 69 Reynolds v., 58 N. Y. 248 69, 70 Bvrne v., 83 N. Y. 620 69 Wendell v., 91 N Y. 420 73 Filer v., 49 N. Y. 47, 59 Id. 351 18,103,264,287,473 Waldete v., 95 N. Y. 275, 19 Am. & Eng. R. R. Cas. 400 418 Besel v. 70 N. Y. 171, 9 Bun 457 -818,368,369 Piper v., 56 N. Y. 630 306 King v., 72 N. Y. 607 306 Gale v., 76 N. Y. 594 470 Kellogg v., 79 N. Y. 72 169, 494 Hoffman v., 44 N. Y. Sup. Ct. 1 445 Disher v , 94 N. Y. 622, 15 Am. & Eng. R. R. Cas. 233 301,307 Kirkpatrick v., 79 N. Y. 240 306 DeGraff" v., 76 N. Y. 125 235, 307, 373 N. Y. C. & H. R. R., Harvey v., 88 N. Y. 481, 8 Am. & Eng R. R. Cas. 5i5 316,338 Sheehan v., 91 N. Y. 332, 12 Am. & Eng. R. R. Cas. 235 317 Peck v., 70 N. Y. 587 107 Byrne v.,. 94 N. Y. 12 160,161 Cordell v., 64 N. Y. 535, 70 Id. 119, 75 Id. 330 160, 171, 434 Culhane v., 60 N. Y. 133 427 Casey v., 78 N. Y. 518 416 Bras'sell v., 84 N. Y. 241, 3 Am. & Eng. R. R. Cas. 380 254, 257 Waterbury v., 17 Fed. Rep. 671 188, 208, 210, 287, 445 Sauter v., 66 N. Y. 50 28, 431, 480 Ross v., 74 N. Y. 617 211, 369 Masterson v., 84 N. Y. 247, 3 Am. & Eng. R. R. Cas. 408 86, 155 v. Vick, 95 N. Y 267, 17 Am. & Eng. R. R. Cas. 609 211 Robinson v., 66 N. Y. 11, 9 Fed. Rep. 877, 20 Blatch. 338 86, 238, 240, 275, 439 Millimann v., 66 N. Y. 642 74, 263, 292 Armstrong v., 64 N. Y. 635 257 Bucher v., 98 N. Y. 128, 21 Am. & Eng. R. R. Cas. 361 263, 264, 287 Hofnagle v., 55 N. Y. 608 122 Nye, Hyman v., 6.Q. B. D. 185 233 N. Y. E. R. R., Weston v., 75 N. Y. 595 254 N. Y. & E. R. R., Hibbard v., 15 N.Y. 455 215,250 Oliver v., 1 Edm. S. C. 589 240 v. Young, 33 Penna. St. 175 146 Ransom v., 15 N. Y. 415 474 N. Y., N. H. & II. R. R. R., Peck v , 50 Conn. 379, 14 Am. & Eng. R. R. Cas. 633 87, 164, 168 N. Y, N. H. & H. R. R., People v., 89 N. Y 266, 10 Am. &. Eng. R R. Cas. 230 155 Weeks v., 72 N. Y. 50 281 N.Y. & II. R. R., Edgerton v., 39 N.Y. 227 274, 2S6, 292, 439 Baulec v., 59 N. Y. 356 314, 315 Saurmon v., 02 X. Y. 251 374 Oldheld v., 3 E. D. Smith 103, 14 N.Y. 310 436, 489 Gonzales v., 50 How. Pr. 126 265 lxxviii TABLE OF CASES CITED. N. Y. & II. R. R., Smith v., 19 N. Y. 2a7 240, 246, 301, 372 Kessenger v., 56 N, Y. 543 163, 166 Jetter v., 2 Abb. Ct. App. Dec. 458 310 N. Y. & N. H. R. R., Coleman v., 106 Mass. 160 108 Judson v., 29 Conn. 434 156 Hughes v., 36 N. Y. Sup. Ct. 222 445 Colegrove v., 20 N. Y. 492, 6 Duer 382 86, 282, 286, 413 Isbell v., 27 Conn. 393 54 Lawrence v., 36 Conn. 63 502 Hood v., 22 Conn. 1, 23 Id. 609 44, 139 Conn. Mut. Life Ins. Co. v., 25 Conn. 265 399 Daily i'., 32 Conn. 356 418 N.Y, L. E. & W. R. R, Strohm v., 96 N. Y. 305 473 Debevoise v., 98 N. Y. 377 410 v. Haring, 47 N. J. L., 21 Am. & Eng. R. R. Cas. 436 43 Knight v., 99 N. Y. 25 28 v. Steinbrenner, 47 N. J. L. 161 86 v. Daugherty, 11 Weekly Notes of Cases (Penna.) 437 240, 246. 274, 439 Ellis v., 95 N. Y. 546, 17 Am. & Eng. R. R. Cas. 641 303, 307, 337 v. Powers, 98 N. Y. 274, 21 Am. & Eng. R. R. Cas. 609 307, 374 Seybolt v., 95 N.Y. 562, 18 Am. & Eng. R. R. Cas. 162 216, 274, 435, 439, 503 Gottleib v , 29 Hun (N. Y.) 637, 100 N. Y. 462 309, 311 N. Y. & N. E. R. R., Darrigan v., 52 Conn. 285, 23 Am. & Eng. R. R. Cas. 438 323 Tyler v., 137 Mass. 238, 19 Am. & Eng. R. R. Cas. 297 169 McGrath v., Mass. , 18 Am. & Eng. R. R. Cas. 5 349, 378 N.Y. & W. Tel. Co. v. Dryburgh, 35 Penna. St. 298 99 N.Y. S. & W. R. R., Smith v., 46 N. J. L. 7, 18 Am. & Eng. R. R. Cas. 399 39 N.Y. Shot ( a., Messmore v., 40 N.Y. 422 460 N. Y. C. S. C. Co., Walton v., 139 Mass. 556, 21 Am. & Eng. R. R. Cas. 600, note 105, 256 N. & C. R. R. v. Erwin, Tenn. , 3 Am. & Eng. R. R. Cas. 465 15, 62, 286, 287 v. Eakin, 6 Coldw. (Tenn.) 582 409 v. Smith, 9 Lea (Tenn.) 470, 15 Am. & Eng. R. R. Cas. 469 191 v. Stevens, 9 Heisk. (Tenn.) 12 492, 493 v. Sprayberry, 9 Heisk. (Tenn.) 852 409 Washburn v., 3 Head (Tenn.) 638 374 v. McDaniel, 12 Lea (Tenn.) 386, 17 Am. & Eng. R. R. Cas. 604 381 v. Carroll, 6 Heisk. (Tenn.) 347 60, 370 Sprayberry v., 8 Baxt. (Tenn.) 341 139 v. Smith, 6 Heisk. (Tenn.) 174 167 v. Messino, 1 Sneed (Tenn.) 220 207, 275 N. & D. R. R. v. Jones, 9 Heisk. (Tenn.) 27 306 N. & G. Water-works Co., Atkin- son v., L. R. 6 Ex. 404, 2 Ex. D. 441 42 N. & J. R. R. v. McNeil, 61 Miss. 434, 19 Am. & Eng. R. R. Cas. 518 247 N. & L. R R., McElroy v., 4 Cush. 400 141, 233, 240 N. & N. Y. T. Co.. Flint v., 34 Conn. 554 281 N. & P. R. R. v. Ormsby, 27 Gratt. 455 91 N. & W. R. R-, Flint v., 110 Mass. 222 152 Daley v., 26 Conn. 591 91 Oakland Ry. v. Fielding, 48 Penna. St. 320 68, 148, 150 Oaks, G. R. R. & B. Co. v., 52 Ga. 410 375 Oakman, Sawyer v., 7 Blatch. C. C. 290 65 Oastler, Watling v., L. R. 6 Ex. 73 95, 344 Oakes v. Spaulding, 40 Vt. 347 145 O'Brien v. B. & W. R. R., 15 Gray 20 215 O. B. Coal Co. v. Read, 5 Weekly Notes of Cases (Penna.) 3 305 TABLE OF CASES CITED. lxxix O'Connor v. B. & L. R. R., 135 Mass. 352, 15 Am. & Eng. E. R Cas. 362 09, 70, 156, 180 v. Pittsburgh, 18 Penna. St. 187 146 Smith v., 48 Penna. St, 218 QS, 71, 193 O. C. R. R., Todd v., 3 Allen 18, 7 Id. 207 207 284 Warden »., 137 Mass. 204, 21 Am. & Eng. R. R. Cas. 612 304, 306 O. C. & N. R. R., Gavnor v., 100 .Mass. 208 173, 257, 266 Sweeny v., 10 Allen (Mass.) 368 148, 163 Southworth v., 105 Mass. 342 154 O'Donnell v. A. V. R. R., 50 Penna. St. 490, 59 Id. 239 211, 240,286, 288, 305, 313 v. P. & W. R. R., 6 R. I. 211 160 O' Flaherty v. W. R. R., 45 Mo. 70 77 Ogden, C. C. R. R. v., 3 Colo. 499 329, 379 Ogier, P. R. R. v., 35 Penna. St. 60 162, 174 Ogle v. P., W. & B. R. R., 3 Houston 267 151 O'Hara, B., P. & W. R. R. »., 12 Weekly Notes of Cases (Penna.) 473 207, 208, 501 Ohrbv i'. Uyde Commrs., 5 B. & " S. 743, 117 E. C. L. 200 Oil City Gas Co. v. Robinson, 99 Penna. St. 1 39 O'Keefe v. C, R. I. & P. R. R., 32 Iowa 467 60 Oldfield v. N. Y. & H. R. R., 3 E. D. Smith 103, 14 X. Y. 310 436, 439 O'Learv v. Mankato, 21 Minn. 65 422 Oliver, Briggs v., 4 II. & C. 408 200 v. N. Y. & E. R. R., 1 Edm. S. C. 589 240 v. N. E. Rv., L. R. 9 Q. 15. 409 156 O'Mara v. H. R. R. R., 38 N. Y. 445 163, 167 Onion, Holmes v., 2 C. B. N. S. 790, 89 E. C. L. 103 O'Neill v. K. A D. M. Ry., 45 Iowa 546 374 O'Neil r. St. L., I. M. & S. R. R., 9 Fed. Rep. 337 309 Oram v. M. R. R., 112 Mass. 38 274 H. & T. Ry. v., 49 Tex. 341 308 Ormond v. Holland, El. Bl. & El. 102, 96 E. C. L. 297 Ormsby, N. A P. R. R. v., 27 < rratt. 455 91 Orr, Hvdraulic Works v., 83 Penna. St. 332 184, 196 L. & N. R. R. i'., 84 Ind. 50, 8 Am. & Eng. R. R. Cas. 94 300 306 O'Rorke v. U. P. Ry., Colo. , 18 Am. & Eng. R. R. Cas. 19 347 O. Ry. & N. Co., Willis v., 11 Oregon 257, 17 Am. & Eng. R. R. Cas. 539 323, 368 Walsh v., 10 Oregon 250 308 O. R. R., King v. (U. S. C. C. Ind.), 8 Am. & Eng. R. R. Cas. 119 377 Osborn v. Gillett, L. R. 8 Ex. 88 397 Osborne v. K. & L. R. R., 68 Me. 49 370 Ostertag v. P. R. R., 64 Mo. 421 73 Overton v. Freeman, 11 C. B. 867, 73 E. C L. 122 State v., 4 Zab. 438 215, 251 Owen v. Burnett, 4 Tyr. 133 7 Day v., 5 Mich. 520 251 v. N. Y. C. R. R., 1 Lans. 103 302, 345 v. Brocksmidt, 54 Mo. 285 493 Owings v. Jones, 9 Md. 117 42 Owston, Bank of New South Wales c, 4 App. Cas. 270 110 O. & C. R, R., Cogswell v., 6 Oregon 417 75 Davis v., S Oregon 172 74, 420 O. & M. R. R. v. Collarn, 73 Ind. 261, 5 Am. & Eng. R. R. " 314, 315, 316, 330, 469, 470 v. Dickerson, 59 Ind. 317 ii4 Gormley v.. 72 Ind. 31, 5 Am. & Eng. R. R. Cas. 581 368 King v., U. S. C. C. Ind., 18 Am.&Eng.R.R.Cas.3S6 281 v. Nick less, 71 Ind. 271 205, 208 r. Selby 47 Ind. 471 204, 208, 276 v. Yaltez, 85 111. 500 363, 364, 368 v. Davis, 23 Ind. 55:; 135 r. Tindall, 13 Ind. 366 367 v. Dunbar, 20 III. 623 141 v. Muhling, 30 111. 9 207, 210 v. Gullett, 15 Ind. 487 256 r. Scbiebe, 44 111. 460 265 v. Hammersley, 28 Ind. 371 76, 418 lxxx TABLE OF CASES CITED. O. & N. R. R. v. Stratton, 78 111. 88 103 O. & M. Packet Co. v. McCool, Ind. , 8 Am. & Eng. K. R. Cas. 390 440 O. & R. V. R. R. v. Martin, 14 Neb. 295, 19 Am. & Eng. R. R. Cas. 236 178, 183 v. Brown, 14 Neb. 170, 11 Am. & Eng. R. R. Cas. 501 32 Pacific R. R., Graham v., 66 Mo. 536 501 Pack v. The Mayor, 3 Comst. 489' 481 Packer, Sykes v., 99 Penna. St. 465 344 Packet Co. v. True, 88 111. 608 214 v. McCue, 17 Wall. 508 372 Pabst v. B. & P. R. R., 2 Mc- Arthnr 42 262, 470 Page v. Defries, 7 B. & S. 137 99 F. R. R. v., 131 Mass. 391, 7 Am. & Eng. R. R. Cas. 86 180 Paige v. Smith, 99 Mass. 395 136 Painter v. Pittsburgh, 46 Penna. St. 213, 221 122 Paine v. G. T Rv., 53 N. H. 611 156 Painton v. N. C. By., 83 N. Y. 7, 5 Am. & Eng. R. R. Cas. 454 307, 346 Palk, Lamb v., 9 C. & P. 629 (38 E. C. L.) 102 Palmer, N. J. R. R. v., 4 Vroom (N. J.) 90 136, 242 Parks v. Ross, 11 How. 373 454 Parmalee, J. M. & I. R. R. v., 51 Ind. 42 263 1 Parnabv v. L. Canal Co., 11 Ad. 6 El. 223, 39 E. C. L. 200, 201 Parr, Jewell v., 13 C. B. 909, 76 E. C. L. 449, 454 Parmeter, Beach v., 23 Penna. St. 197 35 Parrott v. Wells, 15 Wall. 524 434 Paterson v. Wallace, 1 Macq. II. L. 748 314 Patterson v. P. & C. R. R., 76 Penna. St. 389 304, 306, 314, 330, 382 I. C. R. R. v., 93 111. 290, 69 Id. 650 60. 374 v. W., St. L. & P. Ry., 54 Mich. 91, 18 Am. & Eng. R. R. Cas. 130 218, 416 Patten v. Rea, 2 C. B. N. S. 606, 89 E. C. L. 99 Paulk, S. W. R. R. v., 24 Ga. 356 15, 62 PACiB Patten r. C. & N. W. Rv., 32 Wise. 524, 36 Id 413 254 P. A. & M. P. Ry. v. Caldwell, 74 Penna. St. 421 95, 209 v. Donahue, 70 Penna. St. 119 109, 115 v. Pearson, 72 Penna. St. 169 76, 77 Parker v. W. & W. R. R., 86 N. C. 221, 8 Am. & Eng. R. R. Cas. 420 168 Ind. Car Co. i'., 100 Ind. 101 303, 329 Paulmier v. E. Ry., 5 Vroom 151 305, 337 Payne v. Ross, 100 Penna. St. 301 374 St. L. & St. F. Rv. v., 29 Kans. 166, 13 Am. & Eng. R. R. Cas. 632 154, 160, 161 v. T. & B. R. R., 83 N. Y. 572, 6 Am. & Eng. R. R. Cas. 54 156 v. C, R. I. & P. Ry., 39 Iowa 523 86 v. T. & B. R. R., 9 Hun (N. Y.) 526 422 Pakalinsky v. N. Y. C. & H. R. R. R., 82 N. Y. 424, 2 Am. & Eng. R. R. Cas. 251 162, 163 Pantzar v. T. F. I. M. Co., 99 N. Y. 368 320, 329, 330 Pawling v. U. S., 4 Cranch 221 454 P., B. & W. R. R. v. Rohrman, 13 Weekly Notes of Cases (Penna.) 258, 12 Am & Eng. R. R. Cas. 176 15,62 P. C. & St. L. Ry., Cauley v., 95 Penna. St.' 39S, 98 Id. 498 76,109,115, 188, 189, 190, 196, 446 Cooper v., 24 W. Va. 37, 21 Am. & Eng. R. R. Cas. 564, note 330, 369 Cummings v., 92 Penna. St. 82 229 Fawcett v., 24 W. Va. 755, 19 Am. & Eng. R R. Cas. 1 11 v. Henderson, 39 Ohio St. , 5 Am. & Eng. R. R. Cas. 529 317 v. Leech, 41 Ohio St. 388, 21 Am. & Eng. R. R. Cas. 541, note 349 v. Noel, 77 Ind. 110, 7 Am. 6 Eng. R. R. Cas. 524 436 v. Rannev, 37 Ohio St. 665, 5 Am/& Eng. R. R. Cas. 533 367 TABLE OF CASES CITED. lxxxi P C. & St. L. Ry., v. Spencer, 98 Ind. 186, 21 Am. & Eng. R. R. Cas. 478 8(3, 218, 457 v. Sponier, 85 Ind 1(55, 8 Am. & Eng. R. R. Cas. 458 151, 470, 474 v. Staler, 41 Ohio St. 118, 19 Am. & Eng. R. R. Cas. 381 24 Welsh v., 10 Ohio St. 75 501 v. Williams, 74 Ind. 402, 3 Am. & Eng. R. R. Cas. 457 233, 240, 275, 420, 439 v. Thompson, 56 111. 138 233, 240, 248 v. Theobald, 51 Ind. 246 416 v. Vandyne, 57 Ind. 576 280 v. Wright, 80 Ind. 182, 5 Am. & Eng. R. R. Cas. 628 416, 436 v. Yundt, 78 Ind. 373, 3 Am. & Eng. R. R. Cas. 502 164, 165 v. Martin, 82 Ind. 476, 8 Am. & Eng. R. R. Cas. 253 159, 169 v. Krouse, 30 Ohio St. 222 215 P., C. P. Rv. v. Hassard, 75 Penna." St. 367 68, 291, 454 v., Henrice, 92 Penna. St. 431, 4 Am. & Eng. R. R. Cas. 544 195, 419 P. C. & D. Rv., Potts v., 8 W. R. 524 305 P. Canal Co. v. Bentley, 66 Penna. St. 32 436, 454 Peck v. M. C. R. R., Mich. , 19 Am. & Eng. R. R. Cas. 257 105, 165 Peck v. N. Y. C. & H. R. R. R., 70 N. Y. 587 107 Peachey v. Rowland, 13 C. B. 181, 76 E. C. L. 122 Peavey, K. P. Ry. v., 29 Kans. 170, 11 Am. & Eng. R. R. ( las. 260 60, 384, 510 Peek v. N. S. Ry., 10 II. L. 473 499 Pearson v. Cox, 2 C. P. D. 369 122 P. A. & M. Ry. v., 72 Penna. St. 169 76, 77 Pease v. C. & N. W. Ry.. 61 Wise. 163, 17 Am. & Eng. R. R. Cas. 527 327, 338, 346, 366 Pease, Rex v , 4 B. & Ad. 30, 24 E. C. L. 146 Peate, Bower v.. 1 Q. B. D. 326 97, 128 Peck v. N. Y., X. II. & H. R. R. R., 50 Conn. 379, 14 Am. & Eng. R. R. Cas. 633 87, 164, 168 Peer, Drew v., 93 Penna. St. 234 389 Pender, Heaven v., 11 Q. B. D. 507 7, 200, 202, 224 Penna. Co. v. Hoagland, 78 Ind. 203, 3 Am. & Eng. R. R. Cas. 436 262, 263, 467 v. Conlan, 101 111. 93, 6 Am. & Eng. R. R. Cas. 243 364, 426 v. Lillv, 73 Ind. 252 490 v. Lynch, 90 111. 334 342, 374, 378 v. Galentine, 77 Ind. 320, 7 Am. & Eng. R. R, Cas. 517 436 v. Roney, 89 Ind. 453, 12 Am. & Eng. R. R. Cas. 223 60, 306, 375, 379 v. Roy, 102 U. S. 451, 1 Am. & Eng. R. R. Cas. 225 138. 233, 240, 242, 276, 286, 432 v. Stoelke, 104 111. 201, 8 Am. & Eng. R. R. Cas. • 523 347 Taylor v., 78 Ky. 348 409 v. Toomey, 91 Penna. St. 256 109, 115 v. Hankey, 93 111. 530 302, 376 v. James, 8H Penna. St. 194 77, 158, 196 v. Long, 94 Ind. 250, 15 Am. & Eng. R. R. Cas. 245 338, 341 Meek v., 38 Ohio St. 632, 13 Am. & Eng. R. R. Cas. 643 42 Stewart v., Ind. , 14 Am. & Eng. R. R. Cas. 679 148 Stoner v., 98 Ind. 3S4, 21 Am. & Eng. R. R. Cas. 340 27b v. Boylan, 104 111. 595, 10 Am. & Eng. R. R. Cas. 734 156 v. Gallagher, 40 Ohio St. 637, 15 Am. & Eng. R. R. Cas. 341 222 v. Hensil, 70 Ind. 569, 6 Am. & Eng. R. R. Cas. 79 162, 164, 447 v. Rudel, 100 111. 603, 6 Am. & Eng. R. R. Cas. 30 416 v. Woodworth, 26 Ohio St. 585 216 Penna. Trans. Co., Ashmore v., 28 N. J.L.I SO 502 Pendleton v. Kinsley, 3 Clif. 416 114 Peniston v. O, St. L. & N. O. R. R., 34 La. An. 777 254 lxxxii TABLE OF CASES CITED. Perkins v. N. Y. C. E. K., 24 N. V. 196 8,502 v. C, St. L. & N. O. K. E., 60 Miss. 726, 21 Am. & En-. B. B. 242 292 ». C. E. It., 44 N. H. 223 417 Perigo v. C, E. I. & P. E. E., 52 Iowa 276 373 Perren v. M. Ev. & C. Co., 11 C. B. 855, 7*3 E. C. L. 396 Perry, C. E. E. v., 66 Ga. 746, 58 Id. 461 213, 261, 264 Pettit, Baird v., 70 Penna. St. 477 372 Peters v. Bylands, 20 Penna. St. 497 139 Peyton, W., St. L. & P. Ey. v., 106 111. 534 138, 217, 470 Perrv, Lansing v., 17 Hun 34 86 Peeples v. B. & A. E. E., 60 Ga. 287 114 People v. N. Y., N. H. & H. E. E, 89 N. Y. 266, 10 Am. & Eng. E. E. Cas. 230 155 v. C. & A. Ey., 67 111. 118 155 Peoples, P. E. E'. v., 31 Ohio St. 537 390 Pescbel v. C. M. & St. P. Ey., 62 Wise. 338, 17 Am. & Eng. E. E. Cas. 545 323, 338, 368 Peart v. G. T. Ey., 10 Ont. App. 191, 19 Am. & Eng. E. E. Cas. 239 160 Pence v. C, E. I. & P. Ey., 63 Iowa 746, 19 Am. & Eng. E. E. Cas. 366 168, 172 P., F. W. & C. E. E. v. Brigharn, 29 Ohio St. 374 31, 32, 177 v. Collins, 87 Penna St. 405 190 v. Evans, 53 Penna. St. 250 457 v. Dunn, 56 Penna. St. 280 155, 156, 163 v. Gilleland, 56 Penna. St. 445 31, 32 v. Hinds, 53 Penna. St. 512 39, 280 v. Lewis, 33 Ohio St. 196 323 367 v. Powers, 74 111. 341 316* 370 v. Euby, 38 Ind. 294 315 v. Vining, 27 Ind. 513 76 v. Slusser, 19 Ohio St. 157 471 v. Devinney, 7 Ohio St. 197 356 P. G. & N. E. E. v. Wilt, 4 Wh. 143 388 Phelan v. Andrews, 52 Penna. St. 486 460 Philadelphia, Hey v., 2 Weekly Kotesof Cases (Penna.) 466 39 Live/^y v., 64 Penna. St. 106 31 Phillips v. S. W. Ey., 4 Q. B. D. 406, 5 Id. 85, 5 C. P. D. 280 470,473,414 Murrav v., 35 L. T. 477 300 v. E. & S. E. E., 49 N. Y. 177 264 v. E. & S. E. E., 57 Barb. 644 257, 273 v. V. M. & St. P. Ey., 64 Wise. 475, 23 Am. & Eng. E. E. Cas. 453 323 Philippi, orter v. H. & St. J. R. R., 71 Mo. 66, 2 Am. & Eng. R. R. Cas. 44 304, 305, 329, 473, 474 v. E. R. R., 3 Vroom 261 471 Portland, Baker v., 58 Me. 199 65 Creraer v., 36 Wise. 92 47 Portsmouth, Sager v., 31 Me. 228 501 Potts v. P. C & D. Ry., 8 W. R. 521 305 Potter, Daniels v., 4 C. & P. 262, 19 E. C. L. 39, 95, 187 v. C. & N. W. Rv., 21 Wise. 372, 22 Id. 615 60, 489 v. Faulkner. 1 B. & S. 800, 101 E. C. L. 212, 370 Smith v., 46 Mich. 258, 2 Am. & Eng. R. R. Cas. 140 308, 314, 335, 346, 367 v. W. & W. R. R., 92 N. C. 511, 21 Am. &Eng. R. R. ( us. 328 258 v. M. Rv., 30 L. T. N. S. 765, 32 Id. 36 400 Pa.cher v. N. Y. C. R. R., 49 N. Y. 263 502 Poundstone, Rockwood v., 38 111. 200 431 Poulton v. L. & S. W. Ry., L. R. 2 Q. B. 534 110 ' Powell v. P. R. R., 32 Penna. St. 414 250 C, C. & I. R. R. v., 40 Ind. 37 109,215,292 Sharp v., L. R. 7 C. P. 253 11 v. M. P. Rv., 76 Mo. 80, 8 Am. & Eng. R. R. Cas. 467 158, 169 Regina v., 9 Q. B. S06, 58 E. C. L. 413 Powers. N. Y, L E. & W. R. R. v., 98 N. Y, 274, 21 Am. & Eng. R. R. Cas. 609 307, 374 P., F. W. & C. R. R. v., 74 111. 341 316, 370 Pozzi v, Shipton, 8 Ad. & E. 963, 35 E. C. L. 390 P. P. C. Co. v. Bluhm, 109 111. 20 18 Am. & Eng. R. R. Cat,. 87 306, .480 v. Barker, 4 Colo. 344 233, 292 Henrich v., 20 Fed. Rep. 100, 18 Am. & Eng. R. R. Cas. 379 109 Kevin v., 108 111. 222, 11 Am. & Eng. R. R. Cas. 92 391 P. P. & J. R. R. v. Revnolds, 88 111. 418 240, 276 v. Siltman, 88 111. 529 166 P. P. Ry. v. Green, 56 Md. 84, 6 Am. Si Eng. R. R. Cas. 168 212, 371 v. Weiller, 17 Weeklv Xotes of Cases (Penna.) 306 276, 440 Praeger v. B. & E. Ry., 24 L. T. N. S. 105 266, 267 Pratt, Bett v., 33 Minn. 323, 8 Am. & Eng. R. R. Cas. 437 42 Preacher, Mann v., 40 Vt. 332 502 Prescott v. E. R. R., 113 Mass. 370 153 Presbyterian Societv v. A. & R. R. R., 3 Hill" 367 4 Price, P. R. R. v., 96 Penna. St. 256, 113 U. S. 219, 1 Am. & Eng. R. R. Cas. 234, 18 Id. 273 204, 216, 228, 229 v. H. & St. J. R. R., 77 Mo. 508, 15 Am. & Eng. R. R. Cas. 168 377 v. St. L., K. C. & N. R. R., 72 Mo. 414, 3 Am. & Eng. R. R. Cas. 365 55, 264 Burton v., 57 Cal. 272 509 Priestley v. Fowler, 3 M. & W. 1 296, 344, 350 Priest v. II. R. E R., 6S N.Y. 589 114 lxxxiv TABLE OF CASES CITED. Proctor v. Harris, 4 C. & P. 337, 19 E C. L. 148 Prvor, McLaughlin v., 4 M. & Gr. 48, 43 E. C. L. 386, 388 Pry v. H. & St. J. R. R., 73 Mo. 123 470 Prince v. I. & G. N. R. R., 64 Tex. 144, 21 Am. & Eng. R. R. Cas. 152 208, 210 Pringle v. C, R. I. & P. Rv., 64 Iowa 613, 18 Am. &*Eng. R. R. Cas. 91 381, 417 P R. R. v. Ackerman, 74 Penna. St. 265 158, 171 v. Aspell, 23 Penna. St. 147 22, 47, 63, 261, 262, 264 v. Allen, 53 Penna. St. 276 473 v. Bantom, 54 Penna. St. 495 492, 493 v. Beale, 73 Penna. St. 504 169, 171 v. Books, 57 Penna. St. 345 209, 445, 468, 471, 473 v. Barnett, 59 Penna. St. 259 151,153 v. Bock, 93 Penna. St. 427, 6 Am. & Eng. R. R. Cas. 20 76, 168, 395 v. Butler, 57 Penna. St. 336 207, 468, 491, 501 Brownell v., 47 Mo. 240 417 v. Adams, 55 Penna. St. 499 490 Carroll v., 12 Weekly Notes of Cases (Penna.) 348 169, 172, 260 v. Coon, 17 Weekly Notes of Cases (Penna.) 137 158 Creed v., 86 Penna. St. 139 47, 56, 209, 250, 252, 287, 445 Dietrich v., 71 Penna. St. 432 215 Flower v., 69 Penna. St. 210 74, 115, 188, 196, 288, 370, 371 v. Fortnev, 90 Penna. St. 323, 1 Am. & Eng. R. R. Cas. 129 174, 441, 454 Frazier r., 38 Penna. St. 104 313, 314, 330, 356, 366, 373 Fleytas v., 18 La. An. (O. S.) 339 192 Gerard v., 12 Phila. 394, 5 Weekly Notes of Cases (Penna.) 251 229 Gillis v., 59 Penna. St. 139 177 Goldey v., 30 Penna. St. 242 205 v. Goodman, 62 Penna. St. 329 157, 481, 490 v. Henderson, 51 Penna. St. 315, 43 Id. 449 50, 205, 254, 422, 491, 501 P. R. R. v. Hope, 80 Penna. St. 373 13, 39 v. Horst, 16 Weekly Notes of Cases (Penna.) 567 151, 155 Hunt v., 51 Penna. St. 475 125 v. Keller, 67 Penna. St. 300 490 v. Kelly, 31 Penna. St. 372 68, 69, 151, 471, 482 v. Kilgore, 32 Penna. St. 292 18, 263, 264 Kirby v., 76 Penna. St. 506 225, 228 Knight v., 23 La. An. 462 265 Kay v., 65 Penna. St. 273 6. 68, 91, 92, 166, 179 v. Langdon. 92 Penna. St. 21, 1 Am. & Eng. R. R. Cas. 87 251 , 252, 2S6, 288, 289, 495 Longenecker x., 105 Penna. St. 328 163,427,444,454 v. Lewis, 79 Penna. St. 33 76, 77, 158, 196, 198 v. McCloskey, 23 Penna. St. 526 287, 492, 501 Meier v., 64 Penna. St. 225 233, 235, 240, 246 v. Matthews, 36 N. J. L. 531 163, 166 Moore v., 11 Weekly Notes of Cases (Penna.) 310, 99 Penna. St. 301, 4 Am. & Eng. R. R. Cas. 569 73, 190, 196 v. McTighe, 46 Penna. St. 316 436 McDermott v., 30 Mo. 115 305 v. Morgan, 82 Penna. St. 135 ] 95 v. Peoples, 31 Ohio St. 537 391 Powell v., 32 Penna. St. 414 250 v. Price, 96 Penna. St. 256, 113 U. S. 219, 1 Am. & Eng R. R. Cas. 234, 18 Id. 273 204, 216, 228, 229 v. Ogier, 35 Penna. St. 60 162, 174 Richter v., 104 Penna. St. 511 228, 230 v. Righter, 42 N. J. Law 180, 2 Am. & Eng. R. R. Cas. 220 60, 169, 173 v. Shay, 82 Penna. St. 198 508 Schultz v., 6 Weekly Notes of Cases (Penna.) 69 158, 169 Schum v., 107 Penna. St. 8 174,444,447 v. Snicker, 105 Penna. St. 142 103, 474 v. Vandiver, 36 Penna. St. 298, 42 id. 365 107, 108, 109, 468, 491, 493 TABLE OF CASES CITED. lxxxv P. E. R. v. Wachter, 60 Md. 395, 15 Am. & Eng. E. E. Cas. 187 349, 368 v. Weber, 76 Penna. St. 157 174, 436, 444 Weger v., 55 Penna. St. 460 299, 323, 368 v. State, 61 Md. 108, 19 Am. & Eng. E. E. Cas. 326 166, 168, 447 Weed v., 17 1ST. Y. 362 108 Totten v., 11 Fed. Eep. 564 474 v. White, S8 Penna. St. 327 257, 259, 261, 262, 266, 269 Weiss v., 79 Penna. St. 387, 87 Id. 447 174, 444 v. Zebe, 33 Penna. St. 318, 37 Id. 420 250, 251, 259, 270, 272, 468, 492, 493 v. Werner, 89 Penna. St. 59 50, 436 Whitford v., 23 N. Y. 465 409 Moss v., 49 Mo. 169 313, 314 Eohback v., 43 Mo. 187 313, 368 Strong v., 61 Cal. 326, 8 Am. & Eng. E. E. Cas. 273 174 Ostertag v., 64 Mo. 421 73 Devitt v., 50 Mo. 302, 3 Am. & Eng. E. E. Cas. 533 302, 345 P. Ev., Long v., 05 Mo. 225 330, 369 P., E. I. & St. L. Ey. v. Coultas, 67 111. 398 284 Probst v. Delamater, 100 1ST. Y. 266 301 P. S. Ev. v. Tavlor, 104 Penna. St. 306 12, 24, 152, 154, 156, 471 P. S. & P. E. E., Tobin v., 59 Me. 183 220, 253 Knight v., 56 Me. 234, 57 Id. 202 136, 233, 241, 254, 470 Pulling v. G. E. Ey., 9 Q. B. D. 110 398 I'urnell v. Gr. W. Ey. (mentioned by Mellish, L. J., in 2 C. P. D. 210) 103 I url v. St. L., K. C. & N. Ev., 73 Mo. 168, 6 Am. & Eng. E. E. Cas. 27 75, L62 Puterbaugh v. Eeason, 9 Ohio St. 484 S6 Putnam v. B. & S. A. E. E., 55 N. Y. 108 280 P.,W.&B. R.R. r. Brannon, 17 Weekly Notes of Cases (Penna.) 227 13, 26, 107 Moore v., 16 Weekly Notes of Cases (Penna.) 53 107, 169, 193 P., W. & B. E. E. v. Stinger, 78 Penna. St. 225 6, 146, 151, 154, 454 v. Stebbing, 62 Md. 504, 19 Am. & Eng. E. E. Cas. 36 434 Foy v., 47 Md. 76 163 Gerety v., 81 Penna. St. 274 88, 169 v. The State, 58 Md. 372, 10 Am . & Eng. E. E. Cas. 792 222, 372 State v., 47 Md. 76 172 Flinn v., 1 Houston (Del.) 469 205, 233 v. Keenan, 103 Penna. St. 124 307 Ogle v., 3 Houston 267 151 v. Quigley, 21 How. 213 471 State v., 60 Md. 555, 15 Am. & Eng. E. E. Cas. 481 442 Burton v., 4 Harrington 252 152 v. Conway, 17 Weekly Notes of Cases (Penna.) 429 496 Pvm v. G N. Ey., 2 B. & S. 750, 110E.C.L., 4B.&S.390, 116 E. C. L. 87, 482 Pzolla v. M. C. E. E., 54 Mich. 273, 19 Am. & Eng. E. E. Cas. 334 190, 436 P. & A. Bridge Co., Henry v., 8 W. & S. 85 146 P. & C. E. E. o. McClurg. 56 Penna. St. 294 250, 251, 284 v. Pillow, 76 Penna. St. 510 281, 440 Patterson v., 76 Penna. St. 389 304, 306, 314, 330, 382 v. Sentmayer, 92 Penna. St. 276, 5 Am. & Eng. E. E. Cas. 508 301, ^02, 315, 378 v. Andrews, 39 Mil. 329 2S4, 447 P. & O. Canal Co. v. Graham, 63 Penna. St. 290 148. 149, 473 P. & L. E. E. E. v. Bruce, 102 Penna. St. 23 4 P. & N. Y. C. E. E. v. Lacey, 89 Penna. St. 458 13 P. & E. I. E. E. v. Lane, 83 111. 449 240, 286 P. & N. Y, N. & E. E. Co. v. Les- lie, 16 Weekly Notes of Cases (Penna.) 321 306, 329, 369 P. & S. M. S. S. Co., Mullen v., 78 Penna. St. 25 320, 322, 416 P. & E. E. E. v. Commonwealth, 80 Ky. 147, 10 Am. & Eng. E. E. Cas. 318 155 lxxxvi TABLE OF CASES CITED. P. & C. C. Co., Dorsey v., 42 Wise. 583 308 P. & R. R. R. v. Anderson, 94 Penna. St. 351, 6 Am. & Eng. R. R. Cits. J(i7 30, 31, 34, 233, 236, 240, 440 v. Agnew, 1 1 Weekly Notes of Cases (Penna.) 394 307 v. Boyer, 97 Penna. St. 91, 2 Am. & Eng. R. R. Cas. 172 42, 82, 86, 164, 168, 443, 495 Clark v., 5 Weekly Notes of Cases (Penna.) 1J9 190, 196, 434 v. Derby, 14 How. 469 99, 232, 233, 390 v. Heil, 5 Weekly Notes of Cases (Penna.) 91 74, 434 v. Ervin, 89 Penna. St. 71 42 Miller v, 11 Weekly Notes of Cases (Penna.) 369 152 v. Hummell, 44 Penna. St. 375 190, 191, 196, 434 v. Killips, 88 Penna. St. 405 151,165, 447 v. Long, 75 Penna. St. 257 77, 158 Sullivan v., 30 Penna. St. 238 250, 274, 290, 439 v. Schertle, 97 Penna. St. 450, 2 Am. & Eng. R. R. Cas. 158 299, 302, 305, 345, 373, 376, 454 v. Spearen, 47 Penna. St. 300 68, 190, 193, 434 Timlow v., 99 Penna. St. 284 4 v. Towboat Co., 23 How. 209 65 Troutman r., 11 Weekly Notes of Cases (Penna.) 455 166, 179 Gray v. (U. S. C. C. N. D. N.Y.), 22 Am. & Eng. R. R. Cas. 351 86 P. & T. R. R., F. & B. Turnpike Co. v., 54 Penna. St. 345 6, 146, 245 P. & T. R. R.u. Hagan, 47 Penna. St. 244 163, 174 P. & M. R. R, v. Hoehl, 12 Bush (Ky.) 41 70 P. & W. R. R., O'Donnell v., 6 R. 1. 211 160 Boss v., R. I. , 21 Am. & Eng. R. R. Cas. 364 264 Quaife v. C. & N.W. Ry., 48 Wise. 513 254 Quarles, Knight v., 2 Brod. & B. 102, 6 E. C. L. 400 Quarman v. Bennett, 6 M. & W. 499 102, 103, 120 Quigley, P., W. & B. R. R. v., 21 "l low. 213 471 Quimby v. Y. < I. K. It., 23 Vt. 387 158 v. B. & M. R. R., 69 Me. 340 2 V 3 v. Vanderbilt, 17 N. Y. 306 138 Quinn v. i. C. R. R., 51 J 11. 495 284 Radley v. L. & N. W. Ry., L. R. 9 Ex. 91, 10 Id. 100, 1 App. Cas. 754 53, 54 Ragsdale v. M. & C. R. R., 3 Baxter (Tenn.) 426 323 Rainbolt, B., S. (). & B. R. R. v., 99 Ind. 551, 21 Am. & Eng. R. R Cas. 466 240, 440 Rains v. St L., I. M. & S. Ry., 71 Mo. 164, 8 Am. & Eng. R. R. Cas. 610 302, 323, 345,307,493 Raisin v. Mitchell, 9 C. & P. 613, 38 E. C. L. 54 Randall v. B. & O. R. R.. 109 U. S. 478, 15 Am. & Eng. R. R. Cas. 243 160, 247, 306, 344, 355,356,367,454 H. & G. N. Ry. v., 50 Tex. 254 305 v. C. R. R. R., 132 Mass. 209 169 v. Hayward, 5 Bing. N. C. 424' 476 v. Newson, 2 Q. B. D. 102 233 Randleson v. Murray, 8 A. & E. 109, 35 E. C. L. 99, 123 Randolph, C. & A. R. R. v., 53 111. 510 288 Ranney, P. C. & St. L. R. R. v., 37 Ohio St. 665, 5 Am. & Eng. R R. Cas. 533 367 Rapho v. Moore, 68 Penna. St. 404 148 Rapson v. Cubitt, 9 M. & W. 710 102, 122 Rathburn v. B. & M. R. R., 16 Neb. 441, 19 Am. & Eng. R. R. Cas. 137 150 Ravenseroft v. Eyles, 2 Wils. 295 468 Raueh v. Lloyd, 51 Penna. St. 358 67, 68, 151 Raydure v. Knight, 2 Weekly Notes of Cases (Penna.) 713 39 Raymond v. B. C. R. & N. Ry., 65 Iowa 152, 13 Am. & Eng. R. R. Cas. 6, 18 Id. 217 436 Rayner v. Mitchell, 2 C. P. D. 257 102 Ray, A. & C. A. L. R. R. v., 70 Ga. 674, 22 Am. & Eng. R. R. Cas. 281 373, 379 TABLE OF CASES CITED. lxxxvii Kamsden v. B. & A. K. R., 104 Mass. 117 109, 110 Ransom v. N. Y. & E. R. R., 15 N.Y.415 474 v. C, St. P., M. & O. Ry., 62 Wise. 178, 19 Am. & Eng. R. R. Cas. 16 160, 161 Ransier v. M. & St. L. Ry., 32 MinnJ331, 21 Am. & Eng. R. R. Cas. 601 307, 337 Rasmusson v. C, R. I. & P. Ry-, 65 Iowa 236, 18 Am. & Eng. R. R. Cas. 54 349 RathboneV U. R. R., 13 R. I. 709, 13 Am. & Eng. R. R. Cas. 58 274 Read, I. C. R. R. v., 37 111. 484 502 v. G. E. By, L. R. 2 Q. B. 555 410, 509 Readhead v. Midland Ry., L. R. 2 Q. B. 412, 4 Id." 379 118, 231, 234, 237, 240 Reason, Puterbaugh v., 9 Obio St. 484 86 Rector, W., St. L. & P. Ry. v., 104 111. 296, 9 Am. & Eng. R. R. Cas. 264 109, 213, 263, 265 Redmavne, G. W. Ry. v., L. R. 1 C. P. 329 460, 461 Rea, Patton v., 2 C. B. 1ST. S. 606, 89 E. C. L. 99 Reed v. Allegheny, 79 Penna. St. 300 122 v. N. Y. C. R. R., 56 Barb. 493, 45 N. Y. 574 240, 420, 421, 422 O. B. Coal Co v., 5 Weekly Notes of Cases (Penna.) 3 305 Shaw v., 9 W. & S. 72 99 Reese, N. O. & N. E. R. R. v., 61 Miss. 581 122 Barber v., 60 Miss. 906 29 Reedie v. L. & N. W. Ry., 4 Ex. 243 38,97, 102, 120, 125 Reeves, M. & C. R. R. v., 10 Wall. 17ii 31 v. D., L. & W. R. R., 30 Penna. St. 454 55, 60 Regents Canal Co , Wither! ey v., 12 C. B. N. S. 2, 104 E. C. L. 52, 54, 88 Regina v. A rnaud & Powell, 9 Q. .];. 806, 58 E. C. L. 413 Reid, Bartonsliill Coal Co. v., 3 Macq. H. L. 282, 4 Jur. N. S. 767 07, 99, 100, 353, 355, 356 Bigelow v., 51 Me. 325 65 PAGE Rex v. Pease, 4 B. & Ad. 30, 24 E. C L. 14G Reliance Trans. Co., Atwood v. } 9 Watts 87 501 Renneker v. S. C. R. R., 20 Shand (S. C.) 219, 18 Am. & Eng. R. R. Cas. 149 254, 259 Renwick v. N. Y. C. R. R., 36 N. Y. 132 163, 169 Retford, A., T. & S. F. R. R. v., 18 Kans. 245 308 Reynolds, Abraham v., 5 H. & N. 143 122, 342, 372 v. N. E. Ry., Roscoe's N. P. 591 217 P. P. & J. R. R. v., 88 111. 418 240, 276 v. N. Y. C. & H. R. R. R., 5S N. Y. 248 69, 70 Rhoades v. C. & G. T. R. R.. Mich. , 21 Am. & Eng. R. R. Cas. 659 154, 427 Rhodes, G. R. R., 56 Ga. 645 15, 62, 376 Rhymney Ry., Thomas v., L. R. 6 Q. B. 266 138 Ricard v. N. P. R. R., 89 Penna. St. 195 228, 229 Rice, L. L. & G. R. R. v., 10 Kans. 426 160 Richardson, Hilliard v., 3 Gray 349 " 122 v. G. E Ry., L. R. 10 C. P. 486, 1 C". P. D. 342 238, 240, 309 K. P. Ry. v.. 25 Kans. 391, 6 Am. & Eng. R. R. Cas. 96 163 v. Metropolitan Ry., L. R. 3 C. P. 374 278 v. N. Y. C. R. R., 45 N. Y. 846 166 v. N. Y. C. R. R., 98 Mass. 85 409 v. W- & M. R. R., 8 Rich. L. 120 192 Rich, Bryant v., 106 Mass. 180, 202 114 Richards, C. R. R. t>., 62 Ga. 306 431 II. & T. C. Ry. v., 59 Tex. 373, 12 Am. & Eng. R. R. Cas. 64 191 Riches, Coleman v., 16 C. B. 104, 81 E. C L. 102 Richter v. P. R. R., 104 Penna. St. 511 228 Rigby v. Hewitt, 5 Ex. 240 82 Rigg v. M. S. & L. lly., 12 Jur. N. S. 525 259 lxxxviii TABLE OF CASES CITED. Eighter, P. R. R. v., 42 N. J. Law ISO, 2 Am. & Eng. R. R. Cas.220 GO, 169, 173 Rilev v. Baxendale, 6 II. & N. 445 342 v. C. R. R. R., 135 Mass. 292, 15 Am. & Eng. R. R. Cas. 181 444 v. Home, 5 Bing. 217 498 J. M. & I. R. R. v., 39 Ind. 568 214, 255 T., P. & W. R. R. v., 47 111. 514 74 Ripon, Stewart v., 38 Wise. 584 292 Ritchie, R. & C. R. R. v., 102 Penna. St. 425, 19 Am. & Eng. R. R. Cas. 267 158, 169, 174, 444 Rider, H. & T. C. Ry. v., 62 Tex. 267, 21 Am. & Eng. R. R. Cas. 583 368 R., N. Y. & P. R. R., Brick v., 98 N. Y. 212, 21 Am. & Eng. R. R. Cas. 605 323, 328, 347, 368 Roach, C. R. R. v., 64 Ga. 635, 8 Am. & Eng. R. R. Cas. 79 15, 62, 376, 491 Robinson v. II. & T. C. Ry., 46 Tex. 540 356, 373 r. Cone, 22 Vt. 213 91 C. & A. R. R. v., 106 111. 142, 13 Am. & Eng. R. R. Cas. 620, 19 Id. 396 162,427,431 Oil City Gas Co. v., 99 Penna. St. 1 39 N. P. R. R. v., 44 Penna. St. 175 151,486 v. N. Y. C. & H. R. R. R., 66 N. Y. 11, 9 Fed. Rep. 877, 20 Blatch. 338 86, 238, 240, 275, 439 L. & N. R. R. v., 4 Bush (Ky.) 507 366 v. F. & W. R. R., 7 Gray 92 434 Roberts v. C. & N. W. Ry., 35 Wise. 679 156, 166 v. Smith, 2 H. & N. 213 319 Robertson v. E. R. R., 22 Barb. 91 283 v. T., H. & I. R. R., 78 Ind. 77, 8 Am. & Eng. R. R. Cas. 175 367 Robbins, Chicago v., 2 Black. 418 127 v. Chicago, 4 Wall. 657 127, 412 v. Jones, 15 C. B. N. S. 221, 109 E. C. L. 148 Rockwood v. Poindstone, 38 111. 200 431 Robson v. N. E. Ry , L. R. 2 Q. B. D. 87, 10"ld. 371 266, 268, 451, 45-1 Rodman v. M. C. Ry, 55 Mich. 57, 17 Am. & Eng. E. R. Cas. 521 346, 364, 366 Eoe v. B. L. & C. J. Ey., 7 Ex. 36 _ 107, 110, 112, 113 Eogers, Bingham v., 6 W. & S. 495 501 v. M. & O. E. E., Lea (Tenn.) , 12 Am. & Eng. R. R. Cas. 442 135 v. R. Ry., 26 L. T. N. S. 879 257 r. Wheeler, 43 N. Y. 598 134 Rogstad v. St. P., M. & M. Ry., 31 Minn. 208, 14 Am. & Eng. R. R. Cas. 648 224 Rollback v. P. R. R., 43 Mo. 187 313, 368 Rohrman, P., B. & W. R. R. v., 13 Weekly Notes of Cases (Penna.) 258, 12 Am. & Eng. R. R. Cas. 176 15, 62 Roll, Gordon v., 4 Ex. 364 386, 388 Roller v. S. S. R. R., Cal. , 19 Am. & Eng. R. R. Cas. 333 74, 76 Roome, Savaignac v., 6 T. R. 125 110 Roney, Penna. Co. v., 89 Ind. 453, 1 2 Am. & Eng. R. R . Cas. 223 60, 306, 375, 379 Roper, Hartfield v., 21 Wend. 615 91 Rosenberger, G. T. Ry. v., 8 Ont. Ap. 482, 15 Am. & Eng. R. R. Cas. 448 ; 9 S. C. of Can. 311, 19 Am. & Eng. R. R. Cas. 8 160,161 Rose v. B. & A. R. R., 58 N. Y. 217 316 B. & M. R. R. »., 11 Neb. 177, 1 Am. & Eng. R. R. Cas. 253 250, 251 v. D. M. V. R. R., 39 Iowa 246 208, 384, 502 v. N. E. Ry., 2 Ex. D. 248 266, 268 Ross, C, M. & St. P. Ry. v., 112 U. S. 377 324, 325, 326, 362, 369 Marble v., 124 Mass. 44 60 v. N. Y. C. & II. R. R. R., 74 N. Y. 617 211, 369 State v., 2 Dutcher 224 108 Parks v., 11 How. 373 454 Payne v., 100 Penna. St 301 374 Rothwell, Chapman v., E. Bl. & E. 168, 96 E. C. L. 200 TABLE OF CASES CITED. lxxxix Rothe v. M. & St. P. Ry., 21 Wise. 256 173 Rounds v. D , L. & W. R. R., 64 N. Y. 137 114 Rourke v. White Moss. Colliery Co., 2 C. P. D. 205 102, 103, 122, 126, 342 Rowan, C. & P. R. R. v., 06 Penna. St 393 174, 407, 436, 444, 492, 493 495 B. & O. & C. R. R. v., 104 Ind. 88, 23 Am. & Eng. R. R. Cas. 390 302, 345 Rowland v. Cannon, 35 Ga. 105 88 Peachev v., 13 C. B. 181, 76 E C. L. 122 Rowley v. L. & N. W. Ry., L. R. "8 Ex. 22 431, 469, 475, 479, 484 Rowning v. Goodchild, 2 W. Bl. 906 40 Roy, Penna. Co. v., 102 U. S. 451, 1 Am. & Eng. R. R. Cas. 225 136, 233, 240, 242, 276, 286, 432 Romick v. C, R. I. & P. Ry., 62 Iowa 627, 15 Am. & Eng. R. R. Cas. 288 376 R. Ry., Latch v., 27 L. J. Exch. 155, 3 H. & N. (Am. ed.) 930 3S Rogers v., 26 L. T. N. S. 879 257 v. Mitchell, 11 Heisk. 400 439 v. Walker, 11 Heisk. (Term.) 383 60 Friedman v., 7 Phila. 203 417 R., R. I. & St. L. R. R. v. Delany, 82 111. 198 60, 490 v. Wells, 66 111. 321 127 R. T. Co. v. Vanderbilt, 2 N. Y. 479 112 Ruby, P , F. W. & C. R. R. v., 3S Ind. 294 315 RufFord. Beman v., 1 Sim. N. S. 550 133 Rung, C. & R. I. R. R. v., 104 111. 641, 11 Am. & Eng. B. R. fas. 218 306 Rupp, Lehigh Iron Co. v., 12 Wecklv Notes of Cases (Penna.) 47 407 Russell r. 11/ R. R. R., 17 N. Y. 134 211,356 C & R. I. R. R. v., 91 111. 298 308 v. M. & St. L. R. R., 32 Minn. 230 377 Rush, C. & A. R. R. v., 84 111. 670 374, 376 Rutherford, I. & C. R. R. v., 29 Ind. 83 284 Smith v., 2 S. & R. 360 387 Rudel, Penna. Co. v., 100 111. 603, 6 Am. & Eng. R. R. Cas. 30 416 Rucker v. M. P. R. R., 61 Tex. 499, 21 Am. & Eng. R. R. Cas. 245 283 Rutter v. M. P. R. R., SI Mo. 169, 21 Am. & Eng. R. R. Cas. 212 406 R. W. & O. R. R., Webb v., 49 N. Y. 420 13 R. W. Ry., Brabbitts v., 38 Mo. 289 382 Ryan v. C. V. R. R., 23 Penna. St. 384 211, 356, 367 v. C. & K W. Ry., 60 III. 171 330, 369 Ryde Commrs., Hartnall v., 4 B. & S. 361, 116 E. C. L. 200 Commrs,, Ohrby v., 5 B. & S. 743, 117 E. C. L. 200 Rrder v. Wombvvell, L. R. 4 Ex. 32, 40 450, 452 Rylands, Peters v., 20 Penna. St. 497 139 v. Fletcher, 3 H. & C. 774, L. R. 1 Ex. 265 ; L. R. 3 H. L. 330 145 Ry. P. A. Co., Northrup v., 43 N. Y. 516 241 Theobald v., 10 Ex. 45 467 Ry., Taylor v., 48 N. II. 304 246 Waeker v., 39 N. Y. 469 235 v. Valleley, 32 Ohio St. 345 26, 280 R. & C. R. R. v. Ritchie, 102 Penna. St. 425, 19 Am. & Eng. R. R. Cas. 267 158, 169, 174, 444 R. & D. R. R. v. Morris, 31 Gratt. 200 265 Cowles v., 84 N. C. 309, 2 Am. & Eng. K. R. ( las. 90 303, 323 324,370 Crutch field v., 78 N. C. 300, 76 Id. 320 337, 374 Clark v., 78 Va. 709, 18 Am. & Eng. R. R. Cas. 78 302, 345 Dobbin v., 81 N. C. 446 323, 370 Myers v., 87 N. C. 345, 8 Am. & Engl R. R. Cas. 293 151 Johnson v., 81 N. C. 453 307 v. Moore, 78 Va. 93, 15 Am. &Eng. R. R. Cas. 239 307 R. & S. R. K., Phillips v., 49 N. Y. 177 264 xc TABLE OF CASES CITED. R. & S. R. B., < tartis w., 18 N. Y. 534 38. 275. 434, 439, 440, 473, 474 Sherman v., 17 N. Y. 153 3G7 Phillips, 57 Barb. 644 257, 273 R. & B. R. R., Kimball v., 26 Vt. 247 502 R. & A. R. R., Moon v., 78 Va. 745, 17 Am. & Eng. R. R. Cas. 531 324, 369, 370 Sabolla v. Ins. Co., 54 Wise. 687 454 Sadler v. llenlock, 4 El. & Bl. 570, 82 E. C. L. 123 Sager v. Portsmouth, 31 Me. 228 501 Sales v. Western Stage Co., 4 Iowa 547 233 Saltonstall. Stokes v., 13 Peters 181' 15, 62, 439 Salter v. U. & B. R. B., 75 N. Y. 273 172 v. D. & H. C. Co., 3 Hun (N. Y.) 338 422 v. M. & B. R. K. R., 88 N. Y. 42, 8 Am. & Eng. R. R. Cas. 437 159 Sampson, Grier v., 27 Penna. St. 183 148 Salmon, K. P. By. v., 11 Kans. 83 211, 356 Sandford v. Eighth Ave. R. R., 23 N. Y. 343 50, 109 Sammon v. N. Y. & H. R. R., 62 N. Y. 251 374 Sanger, V. C. 11. R. v., 15 Gratt. 230 130, 233, 240 Sarch v. Blackburn, 4 C. & P. 297, 19 E. C. L. 183 Saunders v. L. & N. W. Ry., 8 C. B. N. S. 887, 98 E. C.L. 481 Sauter v. N. Y. C. & H. R. R. R., 66 N. Y. 50 28, 431, 480 Savaignac v. Roome, 6 T. R. 125 110 Sawyer v. Oakman, 7 lilatck. C. C. 290 65 v. H. & St. J. R. R., 37 Mo. 240 35, 235 Sayre, Walsh v., 52 How. Pr. 334 424 S. A. R. R-, Hendricks v., 44 N. Y. Sup. Ct. 8 281 Furst v., 72 N. Y. 542 416 Jackson v., 47 N. Y. 274 109, 114 Ginna v., 67 N. Y. 596 291 Salisbury v. Hercheuroder, 106 Mas-. 45S 42 S. B. R. R., (iilshannon v., 10 Cush. 228 211, 356, 368 \ B. H. R. R., Hanlon v., 129 Mass. 310, 2 Am. & Eng. R. R. Cas. 18 42 PAdB S. B. & N. Y. R. R., Tolnian v., 98 N. Y. 198 162, 175, 436 Mehan v., 73 N. Y. 585 375 Scammou v. Chicago, 25 111. 424 122 Schemer v. M. & St. L. Ry., 32 Minn. 125, 518, 19 Am. & Eng. R. R. Cas. 17;! 191, 431, 432, 492 Scates, C. & N. W. Ry. v., 90 111. 586 254 Scheffer v. W. C. V. M. & G. S. R. R., 105 U. S. 249 11,29 Schertle, P. & R. R. R. v., 97 Penna. St. 450, 2 Am. & Eng. R. R. Cas. 158 299, 302, 305, 345, 373, 376, 454 Schall v. Cole, 107 Penna. St. 1 50, 301 School Pistrict of Erie v. Fuess, 98 Penna. St. 600 122 v. B. H. & E. R. R., 102 Mass 552 501 B. & O. R. R. v., 96 Penna. St. 65, 2 Am. & Eng. R. R. Cas. 166 30, 31, 34 Schmid v. Humphrey, 48 Iowa 652 65 Schmidt, L. & N. R. R. v., 81 Ind. 264, 8 Am. & Eng. R. R. Cas. 248 151, 154 Schroeder v. C, R. I. & P. Ry., 47 Iowa 375, 41 Id. 344 383, 424 Schopman v. B. & W. R. R., 9 Cush. 24 217, 233 Sclmchardt v. Allen, 1 Wall. 368 454 Schittenhelm v. L. & N. R. R., Ky. , 19 Am. & Eng. R. R. Cas. Ill 191, 193 Schum v. P. R. R., 107 Tenna. St. 8 174, 444, 447 Schuylkill Nav. Co. v. Mc- Donoutdi, 33 Penna. St. 7 3 148 Schwindling,^B. & O. R. R. v., 12 Weekly Notes of Cases 349,101 Penna. St. 258 177,196 Schultz v. P. R. R., 6 Weekly Notes of Cases 69 158, 169 v. T. A. R. R., 89 N. Y. 242, 19 Am. & Eng. R. R. Cas. 579 109, 189, 412 v. C. M & St. P. Ry., 48 Wise. 375 330, 369 Schofield v. C M. & St. P. Ry-, 114 U. S. 615, 19 Am. & Eng. R. R. Cas. 353 169, 172 Scothorn v. S. S. Ry., 8 Ex. Jill 137 Schreger^. Garden, 11 C. V>. 851 396 Schilling v. Abernethy, 17 Weekly Notes of Cases (Penna.) 364 184 TABLE OF CASES CITED. XC1 Schiebe, O. & M. B. B. v., 44 111. 460 265 Schaufler, 8. & N. A. K. E. v., 75 Ala. 136, 21 Am. & Eng. K. R. Cas. 405 265, 288 Schollen, Chicago v., 75 111. 468 482, 489 Schaefert v. C. M. & St. P. By., 62 Iowa 624, 14 Am. & Eng. E. E. Cas. 696 171 Schmidt v. M. & St. P. Ey., 23 Wise. 186 28, 69, 198 H. & T. C. E. E. v., 61 Tex. 282, 21 Am. & Eng. E. E. Cas. 345 265 Schwier v. N. Y. C. & H. E. E. E., 90 N. Y. 558, 14 Am. & Eng. E. E. Cas. 656 193 Scott v. D. & W. Ey., 11 Ir. Com. Law 3<7 54 Gorris v., L. E. 9 Exch. 125 42 Gray v., 66 Penna. St. 345 68 v. Hunter, 46 Penna. St. 192 39 L. & St. K. Locks Co., 3 H. & C. 596 438, 441 v. Mayor of Manchester, 1 H. & N. 59 122 v. Shepherd, 3 Wils. 403, 2 W. El. 892, 2 Sin. Lead. Cas 797 9. 39, 95, 387 Scoville v. H. & St. J. E. E., 81 Mo. 434, 22 Am. & Eng. E. E. Cas. 534 55 S. C. E. R., Murray v., 1 Mc- Mullan s535 350. 356, 366 Eenneker v., 20 Shand (S. C.) 219, 18 Am. & Eng. E. E. Cas. 149 251, 259 Brickman v., 8 S. C. 173 305 v. Nix, 68 Ga. 572 27, 409 Marsh v., 56 Ga. 274 416, 423 S. C. & St. P. E. E., Keller v., 27 .Minn. 178 263, 419 Tread wav v., 40 Iowa 526 416 S. C. & P. Ey. v. Stout, 2 Dillon 294, 17 Wall. 657 69, 184 Locke v , 46 Iowa 109 240, 303, 305 Knapp v., 65 Iowa 91, 18 Am. &Eng. U.K. (as. 60 26, 305 Mann v., 46 Iowa 637 305 v. Finlayson, 16 Neb. 272,18 Am. & Eng. E. R. Cas. 306, 382, 424 Smith v.. 15 Neb. 583, 17 Am. & Eng. E. E. Cas. 661 322, 323 Youll v., 56 Iowa 346, 21 Am. & Eng. E. E. Cas. 589 338, 345 S. C. & P. Ey., Kitterinjrham v., 62 Iowa 285, li "..m. & Eng. E. E. Cas. 14 299 Scurr, C, St. L. & N. O. E. E. v., 59 Miss. 456, 6 Am. & Eng. E. E. Cas. 341 263, 471 S. C. Co. v. Bonham, 9 W. & S. 27 134 S. C. P. E. E., McClary v., 3 Neb. 54 233 S. D. Ey. Beal v., 3 H. & C. ?A± 8 S. D. & P. M. E. E., McCaffertv v., 61 N. Y. 178 122 Seaman v. F. L. & T. Co., 1 > Wise. 578 489 Sears, C. E. E. v., 66 Ga. 409 471 C. E?E. v., 61 Ga. 279 379 Searle v. Laverick, L. E. 9 Q. B. 192 232 v. Lindsay, 11 C. B. N. S 429, 103 E. C. L. 356 Searles v. M. Ey., 101 N. Y. 661 435, 441 Seaver v. B. & M. E. E., 14 Gray 466 211,368 Insurance Co. v., 19 Wall. 531 11 Second Nat. Bank of Titusville, Am. Ex. Co. v., 69 Penna. St. 394 501 Secor v. T., P. & W. Ey., 10 Fed. Eep. 15 265, 283 v. St. P., M. & M. Ey., 18 Fed. Eep. 221 209, 210 Selden, Collis v., L. E. 3 C. P. 495 177 Selby, O. & M. E. E. v., 47 Ind. 471 204, 208, 276 Senior v. Ward, 1 El. & El. 385, 102 E. C. L. 374 Sentmayer, P. & C. Ey. v., 92 Penna. St. 276, 5 Am. & Eng. E. E. Cas. 508 301, 302, 378 Seybolt v. N. Y., L. E, & W. E. E., 95 N. Y. 562, 18 Am. & Eng. E. E. Cas. 162 216, 274, 435, 439, 503 Seymour v. C, B. & Q. E. E., 3 Biss. 43 139, 254 v. Greenwood, 7 II. & N. 354 107, 108 v. Maddox, 16 Q. B. 327, 71 E. C. L. 344 S. E. Ev., Ayles v., L. E. 3 Ex. 146 444 Armsworth v., 11 Jur. 758 469, 491 Burke v., 5 C. P. D. 1 500 Coleman v., 4 H. & C. 699 277 XC11 TABLE OF CASES CITED. S. E. Ry., Palton v., 4 C. B. N. S. 296, 93 E. C. L. 488, 493 Le Peintur v., 2 L. J. N. S. 170 460 Franklin v., 3 H. & N. 211 487 Lambkin, v., 5 App. Cas. 352 34, 275, 470 Waller v., 2 IT. & C. 102 356, 358, 363, 366 Walker v., L. E. 5 C. P. 640 112 Whitfield v., 1 El. Bl. &E1. 115, 96 E. C. L. 99, 107 Steel v., 16 C. B. 550, 81 E. C. L. 122 Hogan v., 28 L. T. N. S. 271 281 Chant v., Weekly Notes (Eng.) for 1866, p. 134 490 S. Ex. Co. p. Crook, 44 Ala. 46S 501 v. Moon, 39 Miss. 822 501 Severy v. Nickerson, 120 Mass. 306 177 S. F. & N. P. R. E., Hynes v., 65 Cal. 316, 20 Am. & Eng. R. R. Cas. 486 28, 198 S. F. & S. J. R. R., Needham v., 37 Cal. 409 54 S. F., M. St R. R., Kramer v., 25 Cal. 434 397 Shacklet, W., St. L. & P. Ry. v., 105 111. 304, 12 Am. & Eng. R. R. Cas. 166 86, 283, 413 Shafer, H. & T. C. R. R. v., 54 Tex. 641, 6 Am. & Eng. R. R. Cas. 421 417 Shaber v. St. P., M. & M. R. R., 28 Minn. 103, 2 Am. & Eng. R. R. Cas. 185 159, 162, 169,420,422 Sharp, Dobiecki v., 88 N. Y. 203, 8 Am. & Eng. R. R. Cas. 485 254, 256 Glushing v., 96 N.Y. 676, 19 Am. & Eng. R. R. Cas. 372 164 v. Gray, 9 Bing. 457, 23 E. C. L. 232 v. Powell, L. R. 7 C. P. 253 11 Durkin v., 88 N. Y. 225, 8 Am. & Eng. R. R. Cas. 520 305, 330 Sharpless, Adams Ex. Co. v., 77 Penna. St. 517, 522 449 Shannon, C. & A. R. R. v., 43 111.338 301,482 Shaw, Mellors v., 1 B. & S. 446, L01E. C. L. 319 v. Reed, 9 W. & S. 72 99 Shaw v. Jewett, 86 N. Y. 616, 6 Am. & Eng. R. R. Cas. Ill 168,169,173 Shauck v. N. C. R. R., 25 Md. 462 323 Shause, Beckman v., 5 Rawle 179 501 Sharrod v. L. & N. W, Ry., 4 Ex. 580 389 Shay, P. R. R. v., 82 Penna. St. 198 508 Sheldon, Carlisle v., 38 Vt. 440 87 Shepherd, Scott v., 3 Wiis. 403, 2 Sm. Lead. Cas. 797, 2 W. Bl. 892 9, 39, 95, 387 Sheridan v. B. & N. R. R., 36 N. Y. 39 _ 290, 292 Sherley v. Billings, 8 Bush. 147 114, 233 Sherman v. R. & S. R. R., 17 N. Y. 153 367 v. II. & St. J. R. R., 72 Mo. 62, 4 Am. & Eng. R. R. Cas. 589 73,115,209,210, 212,286,370,371 Sherlock v. Ailing, 44 Ind. 184 233 Sherstone, Tollitt v., 5 M. & W. 283 412 Sheffield G. C. Co., Ellis v., 2 E. & B. 767, 75 E. C. L. 127 Shipton, Pozzi v., 8 Ad. & E. 963, 35 E. C. L. 390 Shires, L., N. A. & C. Ry. v., 108 111. 617, 19 Am. & Eng. R. R. Cas. 387 60, 431 Shoneman, McC'ullough v., 14 Weekly Notes of Cases (Penna.) 395 102 Shoemaker v. Kingsbury, 12 Wall. 369 293 Showers, G. R. & I. R. R. v., 71 Ind. 451, 2 Am. & Eng. R. R, Cas. 9 342 Shearer, S. & M. R. R. v., 58 Ala. 672 166 Sheehan v. N. Y. C. & H. R. R. R., 91 N. Y. 332, 12 Am. & Eng. R. R. Cas. 235 317 Shanks, L., N. A. & C. Ry. v., 94 Ind. 598, 19 Am. & Eng. R. R. Cas. 28 436 Siekings, L. & C. Ry. v., 5 Bush 1 54, 284 Sills v. Erown, 9 C. & P. 601, 38 E. C. L. 47, 48 Simmons v. C. & T. R. R., 110 111. 340, 18 Am. & Eng. R. R. Cas. 50 349 TABLE OF CASES CITED. XC111 Simmons, Borough of Susque- hanna Depot v., 17 Weekly Notes of Cases (Penna.) 362 122 Smith v., 13 Weekly Notes of Cases ( Peuna.) 242, 103 Penna. St. 32 122, 125 Simonson v. C, R. I. & P. Rv., 49 Iowa 19 431 Simpson v. Hand, 6 Wh. 311 47, 81, 86 v. L. G. Omnibus Co., L. R. 8 C. P. 390 434 Sims v. M. & W. R. R., 23 Ga. 93 193 Siner v. G. W. Rv., L. R. 3 Ex. 150, 4 Id. 117 18, 21, 63, 270 Singleton v. E. C. Ry., 7 C. B. X. S. 287, 97 El C. L. 94, 195, 196 S. W. R. R. v., 66 Ga. 252, 67 Id. 306 188, 210, 265, 288, 443 v. S. W. Ry., 70 Ga 464, 21 Am. & Eng. R. R. Cas. 226 133 Sixth Ave. R. R., Drew v., 26 N. Y. 49 489 Siltman, P., P. & J. R. R. v., 88 111. 529 166 S. I. Ry., Henry v., 81 X. Y. 373, 2 Am. & Eng. R. R. Cas. 60 307, 318, 368 S. J. R. R., Carroll v., 58 X. Y. 126 65, 235 S. J. & S. C. R. R., Jamison v., 55 Cal. 593, 3 Am. & Eng. R. R. Cas. 350 6, 233, 240, 241 Skellenger v. C. & N. W. Ry., 61 Iowa 714, 12 Am. & Eng. R. R. Cas. 208 346 Skinner v. L. B. & S. C. Ry., 5 Ex. 797 206, 274,"390, 439 Skip v. E. C. Ry., 9 Ex. 223 318, 373 Skivington, George v., L. R. 5 Ex. 1 412 Skelton v. L. & N. W. Rv., L. R.2C.P. " 165, 172 Slatton, I. C. R. R. v., 54 111. 133 205 Sleath v. Wilson, 9 C. & P. 607, 38 E. C. L. 102 Slattery, D., W. & W. Rv. v., 3 App. Cas. 1155 174, 180, 260, 427, 436, 448, 452, 454, 457 v. H. W. Ry., 23 Ind. 81 31 Slater v. Jewett, 84 X. Y. 61, 5 Am. & Eng. R. R. Cas. 515 316, 317, 326, 344, 362, 363, 366 Sloan, C. I. Ry. v., 62 Iowa 728, 11 Am. & Eng. R. R. Cas. 145 135 Slue, Morse v., 1 Ventr. 238 498 Sly v. Edgeley, 6 Esp. 6 120 S. L. B. R. R. v. Lewark, 4 *nd. 471 224 v. Lvnch, 4 Ind. 494 224 Slusser, P., F. W. & C. R. R. v., 19 Ohio St. 157 471 Smedis v. B. & R. B. R. R., 88 N. Y. 13, 8 Am. & Eng. R. R. Cas. 445 157, 107, 175 Smead v. Foord, 1 El. & El. 602, 102 E. C. L. 460 Smith v. A., T. & S. F. R. R., 25 Kans. 738, 4 Am. & Eng. R. R. Cas. 554 91 Bolch v., 7 H. & X. 736 176 Blumenthal v., 38 Vt. 402 136 v. B. & M. R. R., 120 Mass. 490 65 v. B. & S. Gas Light Co., 1 Ad. & El. 526, 28 E. C. L. 99, 112 Commonwealth v., 10 Allen 488 134 C. & X. W. Ry. v., 46 Mich. 504, 4 Am. & Eng. R. R. Cas. 535 112, 188, 189, 434 E., T. V. & G. R. R. v., 9 Lea (Tenn.) 685 307, 374 v. G. E. Rv., L. R. 2 C. P. 54 259 Hall v., 2 Bing. 156 122 v. H., M. & F. P. Ry., 92 Penna. St. 450 76 v. Home, 8 Taunt. 144, 4 E. C. L. 7 v. Linton, 8 Gray 147 122 v. L. & S. W. Ry., L. R. 5 0. P. 102 6, 39 v. L. & S. W. Ry., L. R. 6 C. P. 14 12 v. L. & X. R. R., 75 Ala. 499, 21 Am. & Eng. R. R. Cas. 157 404 v. L. & St. K. Docks Co., L. R. 3 C. P. 326 200 I. & G. W. Ry. v., 62 Tex. 252, 19 Am. & Eng. R. R. Cas. 21 72 Kain v., 80 X. Y. 458, 2 Am. & Eng. R. R. Cas. 545 136,301,330,413,414 M. & M. R. R. v., 59 Ala. 245 363 Murphy v., 19 C B. X. S. 361, 115 E. C. L. 320, 340 v. M. & L. R. R., 18 Fed. Rep. 304 367, 374 XC1V TABLE OF CASES CITED. Smith, N. & C. R. R. v., 9 Lea 470, 15 Am. & Eng. R. R. Gas. 469 191 N. A: C. R. R. v., 6 Heisk. 171 167 Newel 1 v., 49 Vt. 260 136 Nichols v., 115 Mass. 332 136 v. N. Y. C. R. R., 24 N. Y. 222 502, 503 v. N. Y. & H. R. R. R., 19 N. Y. 227 240,246,301,372 v. N. Y. S. & W. R. R , 46 N.J. L. 7, 18 Am. & Eng. R. R. Cas. 399 39 Paige v., 99 Mass. 395 136 v. Potter, 46 Mich. 258, 2 Am. & Eng. R. R. Cas. 140 ' 309, 314, 335, 346, 367 Pickard v., 10 C. B. N. S. 470, 100 E. C. L. 97, 122, 127, 200 Roberts v., 2 H. & N. 213 319 v. Rutherford, 2 S. & R. 360 387 Nugent v., 1 C. P. D. 425, 444 29, 31 v. O Connor, 48 Penna. St. 218 68, 71, 193 v. S. C. & P. R. R, 15 Neb. 583, 17 Am. & Eng. R. R. Cas. 561 322, 323 v. Simmons, 13 Weekly Notes of Cases (Penna.) 242, 103 Penna. St. 32 122, 125 Sprague v., 29 Vt. 421 134, 13S v. St. L., K. C. & N. Rv., 69 Mo. 32 306, 345 v. St. P , M. & M. R. R., 30 Minn. 169, 9 Am. & Eng. R. R. Cas. 262 15, 28, 62 v. St. J. & H. R. R., 55 Mo. 556 482 v. St. P. C. Ry., 32 Minn. 1, 16 Am. & Eng. R. R. Cas. 310 213, 274, 439 U. S. Bank v., 11 Wheaton 179 454 Venables v., 2 Q. B. D. 279 102 Walker v., 1 Wash. C. C. 152 468, 469 v. West Derby Local Board, 3 C. P. D. 423 148 v. Smith, 2 Pick. 621 86 P. M. & M. R. R. v., 59 Ala. 245 314 v. C, M. & St. P. Ry., 42 Wise. 520 235,345 v. E. R. R., 124 Mass. 154 134 L., N., A. & C. R. R. v., 91 Ind. 119, 13 Am. & Eng. R. R. Cas. 608 156 PAd Smithson, M. C. R. R. v., 45 Mich. 212, 1 Am. & Eng. R. R. Cas. 101 302, 309, 346 Smoot v. M. & M. Rv., 67 Ala. 13 303 Smyth, llounsell v., 7 C.B. N. S. 731, 97 E, C. L. 183 S. M. R. R., Gates v., 28 Minn. 110, 2 Am. & Eng. R. R. Cas. 237 31, 32, 300, 302, 303, 305 Kellv v., 28 Minn. 98, 6 Am. & *Eng. R. R. Cas. 264 156, 422 S. Mining Co., Beauehamp v., 50 Mich. 163 29 Snow v. II. R. R., 8 Allen 441 221, 305, 372, 377 v. F. R. R., 136 .Mass. 552, 18 Am. & Eng. R. R. Cas. 161 102, 255 Snyder, Myers v., Brightly N. P. 489 148 v. H. & St. J. R. R., 60 Mo. 413* 74 B. & I. R. R. v., 24 Ohio St. 670 76 B. & I. R. R. v., 18 Ohio St. 399 91 Sneesby v. L. & Y. Ry., 1 Q. B. D. 42 39 Somerville. Brooks v., 106 Mass. 271' 454 Southcote v. Stanley, 1 H. & N. 246 177 Southcote's Case, 4 Rep. 84 498 Southwick, Coleman v., 9 Johns. 45 470 Southworth v. O. C. & N. R. R., 105 Mass. 342 154 Spaight ■(>. Tedcastle, 6 App. Cas. 217 81 Sponier, P., C. & St. L. R. R. v., 85 Ind. 165, 8 Am. & Eng. R. R. Cas. 453 151, 470, 474 Spear, Dexter v., 4 Mason 115 468 Spearen, P. & R. R. R. v., 47 Penna. St. 300 68, 190, 193, 434 Speer, C. & P. R. R. v., 56 Penna. St. 325 146 Speed v. A. & P. R. R., 71 Mo. 303, 2 Am. & Eng. R. R. Cas. 77 125,133, 141,344 Speyer, Cleveland v., 16 C. B. N. S. 399, 111 E. C. L. 371 Spencer, P., C. & St. L. R. R. v., US Ind. 186, 21 Am. & Eng. R. R. Cas. 478 86, 218, 457 v. Campbell, 9 W. & S. 32 390 TABLE OF CASES CITED. xcv Spencer v. M. & P. I. 0. R. R., 17 Wise. 487 285 v. I. C. R. R., 29 Iowa 55 169 Spooner v. B. C. R. R., 54 N. Y. 230 290 Spicker, P. R. R. v., 105 Penna. St. 142 103, 474 D. & W. R. R. v., 61 Tex. 427, 21 Am.&Eng. R. R. Cas. 160 240, 436, 491 Sprague, Heeney v., 11 R. I. 456 42 v. Smith, 29 Vt. 421 134, 138 Sprayberry, N. & C. R. R. v., 8 Baxt. (Tenn.) 341 139, 409 Sproul v. Hemmingway, 14 Pick. 1 103 Sprong v B. & A. R. R., 58 N. Y. 56 374 Spaulding, Oakes v., 40 Vt, 347 145 Spensley v. Insurance Co., 54 Wise. 433 454 8. P. Ry., Hahn v., 51 Cal. 605 152 Leahy v., Cal. , 15 Am. & Eng. R. R. Cas. 230 307 Meeks v., 56 Cal. 513, 8 Am. & Eng. R. R. Cas. 314 54, 91, 196 Meeks v., 52 Cal. 604 192 8. P. C. R. R., Tennenbroock v., 59 Cal. 269, 6 Am. & Eng. R. R. Cas. 8 190, 192 Springett v. Ball, 4 F. & F. 472 470 S. R. R., Hurt v., 40 Miss. 391 204, 207 v. Jones, 30 Kans. 601, 15 Am. & Eng. R. R. Cas. 201 305, 307 v. Kendrick, 40 Miss. 374 262, 467, 471 S. R. & D. R. R., Lacy v., 43 Ga. 461 410 S. S. Ry., Scothorn v., 8 Ex. 341 137 S. S. R. R., Roller v., Cal. 19 Am.& Eng. R. R. Cas. 333 74, 76 Stackus v. N. Y. C. & H. R. R. R., 79 N. Y. 464 169 Stables, I. & St. L. R. R. v., 62 III. 313 473 Stallebrass, Hodsoll v., 11 Ad. & El. 301, 39 E. C. L. 473 Stahl v. Townsend, 37 Ala. 247 501 Staley, P., C. & St. L. R. R. v., 41 Ohio St. 118, 19 Am. & Eng. R. R. Cas. 381 24 Stanley, I Ionian v., 66 Penna. St. 461 148 Bouthcote v., 1 H. & N. 246 177 W. M. R. R. v., 61 Md. 266, 18 Am. & Eng. R. R. Cas. 206 15, 279 Stanton v. Metropolitan R. R., 14 Allen 485 65 Stanwix, Ashworth v., 3 El. & El. 701, 107 E. C. L. 319 Stapley v. L. B. & S. 0. Ry., L. R. lEx.21 41, 164, 166, 172 Starry v. D. & L. W. R. R., 51 Iowa 419 436 State, B. & O. R. R. v., 29 Md. 252, 420 246 v. B. & O. R. R., 24 Md. 84 36, 54, 158, 233, 493 v. Overton, 4 Zab. 438 215, 251 P. R. R. v., 61 Md. 10 S 19 Am. & Eng. R. R. Cas. 326 166, 168, 447 v. M. & E. R. R., 25 K J. L. 437 151 v. E. & N. A. R. R., 67 Me. 479 134 B. & O. R. R. v., 33 Md. 542 54, 212, 372, 376 N. C. Ry. v., 29 Md. 420 29 v. Ross, 2 Butcher 224 108 v. D. & S. E. R. R,, 36 Ohio St. 436, 5 Am. & Eng. R. R. Cas. 312 155 B. & O. R. R. v., 41 Md. 268 318, 373, 491 v. G. T. Ry., 58 Me. 176 214, 436 P., W. & B. R. R v., 58 Md. 372, 10 Am. & Eng. R. R. Cas. 792 222, 372 B. & O. R. R. v., 60 Md. 449, 12 Am. & Eng. R. R. Cas. 149 257, 283 B. & O. R. R. v., 63 Md. 135, 21 Am. & Eng. R. R. Cas. 202 287, 440, 490, 493 v. P., W. & B. R. R., 60 Md. 555, 15 Am. & Eng. R. R. Cas. 481 442 N. C. Ry. v., 54 Md. 113, 6 Am. & Eng. R. R. Cas. 66 170 B. & O. R. R. v., 41 Md. 268 318 v. M. C. R. R., 77 Me. 244, 21 Am. & Eng. R. R. Cas. 216 405 B. &0. R.R. »., 62 Md. 479, 19 Am. & Eng. R. R. Cas. 83 196,416, 434 v. M. C. R. R., 76 Me. 657, 19 Am. & Eng. R. R. Cas. 312 168, 436 v. P., W. & B. R. R., 47 Md. 76 172 C. & P. R. R. v., 44 Md. 283 306 XCV1 TABLE OF CASES CITED. Stoddard ». St. L., K. C & N. R. R., (55 Mo. 514 379 Statham, N. O. R. R. v., 42 .Miss. 607 263, 292 Stockton v. Frey, 4 Gill 406 233 Stoddard ». L. 1. Ry., 5 Sandf. S. C. ISO 501 Stoelke, Penna. Co. v., 104 111. 201, 8 Am. & Eng. R. R. Cas. 523 347 Stone v. Dickinson, 5 Allen 29 394 Forsdike v., L. R. 3 C. P. 607 476 v. Utica, 17 N. Y. 104 123 v. Jackson, 12 C. B. 199, 81 E. C. L. 183 Stokes v. Saltonstall, 13 Peters 181 15, 62, 439 v. E. C. Ry., 2 F. & F. 691 238 Storey v. Ashton, L. R. 4 Q. B. 476 102 Stott v. G. T. Rv.,' 24 Up. Can. (C. P.) 347 151 Stout, S. C. & P. Ry. v., 2 Dillon 294, 17 Wall. 657 69, 184 I. & St. L. Ry. v., 53 Ind. 143 156 Stratton, O. & N. R. R. v., 78 111. 88 103 Strong, W. & A. R. R. v., 52 Ga. 461 510 Straus v. K. C, St. J. & C. B. Ry., 75 Mo. 185. 6 Am. & Eng. R. R. Cas. 384 263, 265 Strauss v. W., St. L. & P. Ry., 17 Fed. Rep. 209 34 Struthers v. D. W. & P. Rv., 87 Penna. St. 282 146 Strohm v. N. Y., L. E. & W. R. R., 96 N. Y. 305 473 Strieker, B. & O. R. R. v., 51 Md. 47 302, 345 Stublev v. L. & N. W. Ry., L. R. 1 Ex. 13 163, 166 Stutler, F. & A., St. P. Ry. Co. v., 54 Penna. St. 375 392, 413 Stumfs, C, B. & Q. R. R. v., 55 111. 367 427 State Bank, Merchants' Bank v., 10 Wall. 604 454 Stebbing, P., W. & B. R. R. v., 62 Md. 504, 19 Am. & Eng. R. R. Cas. 36 434 Steel v. S. E. Ry., 16 C, B. 550, 81 E. C. L. 122 Steele v. C. R. R., 43 Iowa 109 375 Steel, Couch v., 3 E. & B. 402, 77 E. C. L. 40 'Ueen, C. St. Ry. v., 42 Ark. 321, 19 Am. & Eng. R. R. Cas. 30 54, 471, 472 Stevens v. Armstrong, 2 Seld. 435 102 G. T. Ry. v., 95 U. S. Coo 4, 205, 501, 503 Harris v., 31 Vt. 79 213 Henderson v., L. R. 3 II. L. Sc. & Div. 470 501 N. & C. R. R. v., 9 Heisk. (Terra.) 12 492. 493 L. M. R. R v., 20 Ohio 416 323, 324, 369 v. Woodward, 6 Q. B. D. 318 102 Stewart, Brydon v., 2 Macq. H. L. 30 314 v. Alcorn, 2 Weeklv Notes of Cases (Penna.) 401 148 v. B. & C. R. R., 90 N. Y. 588, 12 Am. & Eng. R. R. Cas. 127 114, 117 Hunter v., 47 Me. 419 25 v. I. & G. N. Ry., 53 Tex. 289, 2 Am. & Eng. R. R. Cas. 497 254 M., A. & B. Rv. v., 30 Kans. 226, 13 Am.' & Eng. R. R. Cas. 503 426 D. Turnpike Co. v., 2 Mete. (Ky.) 119 86 I. & G. N. Ry. v., 57 Tex. 166 470 E. T. V. & G. R. R., 13 Lea (Tenn.) 432, 21 Am. & Eng. R. R. Cas. 614 306 v. Penna. Co., Ind. , 14 Am. & Eng. R. R. Cas. 679 148 v. Ripon, 38 Wise. 584 292 Strin^liam v., 100 N. Y. 516 337 v. T. H. & I. R. R., 103 Ind. 44, 21 Am & Eng. R. R. Cas. 209 405 Stringham, Stewart v., 100 N. Y. 516 337 Steinwav, Benzing v., 101 N. Y. 547 329 Stillwell v. KY. C.R. R., 34 N. Y. 29 166, 419 Strong v. P. R. R., 61 Cal. 326, 8 Am. & Eng. R. R. Cas. 273 174 S.& P. R.R. v., 61 Cal. 326, 8 Am. & Eng. R. R. Cas. 273 153 St. John, E. T. V. & G. R. R. v., 5 Sneed (Tenn.) 524 196 Stiles v. A. & W. P. R. R., 65 Ga. 370, 8 Am. & Eng. R. R. Cas. 195 220, 272 Stringfellow, M. & L. R. R. R. v., 44 Ark. 32, 21 Am. & Eng. R. R. Cas. 374 264 TABLE OF CASES CITED. XCV11 Stoner v. Penna. Co., 98 Ind. 384, 21 Am. & Eng. K. R. Cas. 340 * 273 Strieker, Marshall v., 63 Mo. 308 323 Studebaker, Wolf v., 65 Penna. St. 459 460 Stumps, C, B. & Q. R. E. v., 69 111. 409 73 Steinbrenner, N. Y.. L. E. & W. R. R. v., 47 N. J. L. 161 86 Stringfellow, M. & L. R. E. R. v., 44 Ark. 322, 21 Am. & Eng. R. R. Cas. 374 135 Stetler v. C. & N. W. Ry., 49 Wise. 609 138 Stead, C. I. Co. v., 95 U. S. 161 157, 158, 166, 169 Steinmetz v. Kelly, 72 Ind. 442 50 Stein v. G. A. Ry., 10 Phila. 440 418 Steinman, Bush v., 1 Bos. & Pul. 404 119 Steamboat Xew World v. King, 16 How. 469 8, 207, 233 Stead, C. I. Co. v., 95 U. S. 161 Stiles v. Geesey, 71 Penna. St. 439 55, 60 v. N. Co., 33 L. J. N. S. 311 145 Stinson v. N. Y. C. R. R., 32 N. Y. 333 502 Stille, Martin v., 3 Whart. 337 395 •Stinger, P., W. & B. R. R. v., 78 Penna St. 225 6, 146, 151, 154, 454 St. L., A. & T. H. R. R. v. Miller, 43 111. 199 135 St. L., I. M. & S. R. R. v. Cantrell, 37 Ark. 519, 8 Am. & Eng. R. R. Cas. 198 254, 264, 286, 287, 468, 474 v. Harper, 44 Ark. 524 306 v. Freeman, 36 Ark. 41, 4 Am. & Eng. R. R. Cas. 608 91, 482 v, Higgins, 44 Ark. 293, 21 Am. & Eng. R. R. Cas. 629 303 Klutts v., 75 Mo. 642, 11 Am. & Eng. R. R. Cas. 639 474, 480 Murphy v., 71 Mo. 202 314 Rains v., 71 Mo. 164, 8 Am. & Eng. R R. Cas. 610 302, 323, 345, 307, 493 George v., 34 Ark. 613, 1 Am. & Eng. R. R. Cas. 294 240, 275,439,508 Langan v., 72 Mo. 392, 3 Am. & Eng. R. R. Cas. 355 220, 256 Wallace v., 74 Mo. 594 158, 318 Q St. L., I. M. & S. R. R., O'Neil v., 9 Fed. Rep. 337 309 St. L. & I. M. R. R.. McGowan v., 61 Mo. 528 306, 323, 363 Elliott v., 67 Mo. 272 314 Gowan v., 61 Mo. 528 323 Koons v., 65 Mo. 592 186 Lewis v., 59 Mo. 495 305, 329, 369 St. L. & St. F. Ry. v. Pavne, 29 Kans. 166, 13 Am."& Eng. R. R. Cas. 332 154, 160, 161 St. L. & S. E. Ry. v. Britz, 72 111. 261 342, 368 v. Matthias, 50 Ind. 65 167 v. Valirius, 56 Ind. 511 301, 30(5, 309, 338 St. L., A. & T. H. R. R., Thaver v., 22 Ind 26 42,'54, 323 Street R. R. v. Nolthenis, 40 Ohio St. 376, 19 Am. & Eng. R. R. Cas. 191 ' 150 St. L., K. C. & N. R. R., El let v., 76 Mo. 518, 12 Am. & Eng. R. R. Cas. 183 34, 277 Harlan v., 64 Mo. 480, 65 Mo. 22 55, 190 Dale v., 63 Mo. 455 303, 375 Henry v., 76 Mo. 288, 12 Am. & Eng. R. R. Cas. 136 26, 283 Smith v., 69 Mo. 32 305, 345 Hulett v., 67 Mo. 239 303, 376 Blessing v., 77 Mo. 410, 15 Am. & Eng. R. R. Cas. 298 366 Frick p., 75 Mo. 595, 8 Am. & Eng. R. R. Cas. 280 77,91,157,159,167, 196,482 Gibson v., 8 Mo. App. 488 151 Price v., 72 Mo. 414, 3 Ami & Enc. R. R. Cas. 365 55, 264 v. Trigg, 74 Mo. 147, 6 Am. & Eng. R. R. Cas. 345 25, 263, 459, 466 Whalen v., 60 Mo. 323 474 Stoddard v., 65 Mo. 514 379 v. Marshall, 78 Mo. 610, 18 Am. & Eng. R. R. Cas. 248 25, 466 Ely v., 77 Mo. 34, 16 Am. & Eng. R. R. Cas. 342 32, 422 Hoke v., 11 Mo. App. 575 368 Purl v., 73 Mo. 168, 6 Am. & Eng. R. R. Cas. 27 75, 162 Hodges v., 71 Mo. 50, 2 Am. & Eng. R. R. Cas. 190 160, 161 Henze v., 71 Mo. 636, 2 Am. & Eng. R. R. Cas. 212 169, 173 XCV111 TABLE OF CASES CITED. St. L., K. C. & N. R. R., Yarnall v., 75 Mo. 575, 10 Am. & Eng. R. R. (.'as. 726 190 St. L. T. Co., Francis v., 5 Mo. App. Cas. 7 25, 466 St. L. & S. P. Ry. f>. Marker, 41 Ark. 542 376 St. P., D. & P. M. R R, Ditchett v., 67 N. Y. 425 133 St. P., M. & M. Ry., Hutchinson «., 32 Minn. 398, 19 Am. & Eng. R. R. Cas. 280 166, 169 Fraker v., 32 Minn. 54, 15 Am. & Eng. R. R. Cas. 256 323, 346, 36S, 369 Fitzgerald v., 29 Minn. 336, 8 Am. & Eng. R. R. Cas. 310 28, 42, 91, 198 Mark v., 30 Minn. 493, 12 Am. & Eng. R. R. Cas. 86 50, 62 Buenemann v., 32 Minn. 390, 18 Am. & Eng. R. R. Cas. 153 254 Secor v., 18 Fed. Rep. 221 209, 210 Shaber v., 28 Minn. 103, 2 Am. & Eng. R. R. Cas. 185 159, 163, 169, 420, 422 Smith v., 30 Minn. 169, 9 Am. & Eng. R. R. Cas. 262 15, 28, 62 Howard v., 32 Minn. 214, 19 Am. & Eng. R. R. Cas. 283 166 Faber v., 29 Minn. 465, 8 Am. & Eng. R. R. Cas. 277 460 Kelly v., 29 Mich. 1, 6 Am. & Eng R. R. Cas. 93 163, 169 Rogstad v., 31 Minn. 208, 14 Am. & Eng. R. R. Cas. 648 224 St. P. & D. R. R., Flemming v., 27 Minn. Ill 344 Johnson v., SI Minn. 283, 15 Am. & Eng. R. R. Cas. 467 156, 166 Walsh v., 27 Minn. 367, 2 Am. & Eng. R. R. Cas. 114 344 Gradin v., 30 Minn. 217, 11 Am. & Eng. R. R. Cas. 644 209 Hatfield v., 33 Minn. 130, 18 Am. & Eng. R. R. Cas. 292 424 Vt. P. & P. R. R., LeClair v., 20 Minn. 9 382 St. L. & O. Ry., Lett v., 11 Ont. Ap. 1, 21 Am. & Eng. R. R. Cas. 165 486, 490 St. P. C. Ry., Smith v., 16 Minn. 1, 16 Am. & Eng. R. R. Cas. 310 213, 274, 439 St. P. Water Co. v. Ware, 16 Wall. 566 127 St. H. Ry. & Canal Co., Manley v., 2 H. & N. 840 149 St. P. & S. C. R. R., Clark v., 28 Minn. 128, 2 Am. & Eng. R. R. Cas. 240 345 Collins v., 30 Minn. 31, 8 Am. & Eng. R. R. Cas. 150 368 St. P. & C. R. R., Jacobus v., 20 Minn. 125 207, 286, 501 St. Lonis, Barry v., 17 Mo. 121 122 St. Louis R. R., Liddy v., 40 Mo. 506 54 Maschek v., 71 Mo. 276, 2 Am. & Eng. R. R. Cas. 38 35, 74, 112 St. J. & H. R. R., Smith v., 55 Mo. 556 482 St. L., V. & T. H. R. R. v. Bell, 81 111. 76 186 Suggs, T. & St. L. R. R. v., 62 Tex. 323, 21 Am. & Eng. R. R. Cas. 475 238, 275, 440 Sullivan v. P. & R. R. R., 30 Penna. St. 234 250, 274, 290, 439 C. & A. R. R. v., 63 111. 293 314 v. L. Bridge Co., 9 Hush 81 47 Summerhays v. K. P. Ry., 2 Colo. 484 367 Sutherland v. G. W. Ry., 7 Up. Can. (C. P.) 409 502 C. & P. R. R. v., 19 Ohio St. 151 74 Sutton v. N. Y C. R. R., 66 N. Y. 243 177, 178 I. C. R. R. v., 42 111. 438 418 Summers v. C. C. R. R-, 34 La. An. 139 285 Swainson v. N. E. Ry., 3 Ex. D. 341 372 Swayne, C. P. Ry. v., 13 Weekly Notes of Cases (Penna.) 41 440 Swansey, Bosworth v., 10 Mete. 363 65 Swart wont, Tracv v., 10 Pet. 81 471 Sweeny v. C. P. R. R., 87 Cal. 15, 8 Am. & Eng. R. R. Cas. 151 343, 344 C. & N. W. Ry. v., 52 111. 330 60, 173 TABLE OF CASES CITED. XC1X Sweeny v. B. & A. R. R., 128 Mass. 5, 1 Am. & Eng. R. R. Cas. 138 180 v. B. & J. E. Co., 101 N. Y. 520, 524 343 Sweenev v. M. & St. L. Ry., 33 Minn. 153, 22 Am. & Eng. R. R. Cas. 302 374 v. O. C. & N. R. R., 10 Allen (Mass.) 368 148, 163 Sweigert v. H. & St. J. R. R., 75 Mo. 475, 9 Am. & Eng. R. R. Cas. 322 263, 436 S. W. Ry., Marfell v., 8 C B. N. S. 525, 98 E. C. L. 200, 225 Phillips v., 4 Q.' B. D. 403, 5 Id. 85, 5 C. P. D. 280 470, 473, 474 Warburton v., L. R. 2 Ex. 30 222, 372 S. W. R. R. v. Paulk, 24 Ga. 356 15, 62 v. Singleton, 66 Ga. 252, 67 Id. 306 188,210,265,288,443 v. Hankerson, 61 Ga. 114 74 Singleton v., 70 Ga. 464, 21 Am. & Eng. R. R. Cas. 226 133 Johnson v., 60 Ga. 667 190 Swett, C & N. W. Ry. v., 45 111. 197 482 Swift, J. R. R. v., 26 Ind. 459 265 Sykes, C, B & Q. R. R v., 96 111. 162, 2 Am. & Eng. R. R. Cas. 254 287, 288 v. Packer, 99 Penna. St. 465 344 v. N. E. Ry., 32 L. T. N. S. 199 489 S. Y. Ry.. Binks v., 3 B. & S. 244, 113 E. C. L. 183 Hardcastle v., 4 H. & K 67 183 Sympkins, H. & T. C. Ry. v., 54 Tex. 615, 6 Am. & Eng. R. R. Cas. 1 1 196 S. & S. Ry., Hole v., 6H.&N. 488 126 S. & S. R. R., Lincoln v., 23 Wend. 425 29 S. & R. R. R-, Costello v., 65 Barb. 92 240 S. & U. R. R., Coon v., 5 N. Y. 492 323, 356, 368 S. & A. R. R., Baughman v., 92 Penna. St. 335 156, 172 Gilliam v., 70 Ala. 268, 15 Am. & Eng. R. R. Cas. 138 115 8. & N. A. R. R. v. McLendon, 63 Ala. 266 474 S. & N. A. R. R. v. Schaufler, 75 Ala. 136, 21 Am. & Eng. R. R. Las. 405 265, 288 Tyson v., 61 Ala. 554 314, ooO S. & M. R. R. v. Shearer, 58 Ala. 672 166 S. & P. R. R. v. Strong, 61 Cal. 326, 8 Am. & Eng. R. R. Cas. 273 153 S. & R. R. R., Dun v., 78 Va. 645, 16 Am. & Eng. R. It. Cas. 363 284 T., A. A. & G. T. Ry., Veits v., 55 Mich. 120, 18 Am. & Eng. R. R. Cas. 11 338, 346 Taber v. D., H. & L. Ry., 71 N. Y. 489 262 Taft, M. & O. R. R. v., 28 Mich. 289 314 Talbot, Tuller v., 23 111. 357 233 Tanner v. L. & N. R. R., 60 Ala. 621 233, 416 Tarrant v. Webb 18 C. B. 797, 86 E. C. L. 314, 321 Tarry v. Ashton, 1 Q. B. D. 314 127, 148 Tavleur, Fletcher v., 17 C. B. 21, 84 E C. L. 460 Taylor, Briggs v., 28 Vt. 180 8, 446 Charles v., 3 C. P. D. 492 356 C. & K W. Ry. v., 69 01. 461 319 v. G. N. Ry., L. R. 1 C. P. 385 39, 140 Hurst v., 14 Q. B. D. 918 149 Hadley v., L. R. 1 C, P. 53 ]48 v. G. T. Ry., 48 N. H. 229, 304 233, 418, 472 v. Ry., 48 N. H. 304 246 P. S. Ry. v., 104 Penna. St. 306 12, 24, 152, 154, 156, 471 v. Penna. Co , 78 Ky. 348 409 T. A. R. R., Isaacs v., 47 N. Y. 122 112, 114 Schultz v., 89 N. Y. 242, 19 Am. & Eng. R. R. Cas. 579 1(19, 189, 412 T., C. S. & D. Ry., Day v., 42 Mich. 523, 2 Am. & Eng. R. R. Cas. 126 346, 356 Tebbutt v. B. & E. Ry., L. R. 6 Q. B. 73 _ 217,256 Ted castle, Spaight v., 6 A pp. Cas. 217 81 Terry, C, C. & C. R. R. v., 8 Ohio St. 570 75, 86 I. & G. N. R. R. v., 62 Tex. 380, 21 Am. & Eng. R. R. Cas. 323 263, 467 v. Jewett, 78 N. Y. 338 257 TABLE OF CASES CITED. Tennenbroock v. S. P. C. R. K., 59 ( al.269, 6 Am. & Eng. !;. K. Cas. 8 190, 192 T. F. I. M. Co., Pantzar v., 99 N. Y. 368 320, 329, 330 T. G It. P., Maleck v., 57 Mo. 18 114 Thaver v. St. L., A. & T. H. R. R., 22 Ind. 26 44, 54, 323 The Assessors, Van Allen v., 3 Wall. 573 413 The Bernina, 11 P. D. 31 81, 86 The Thetis, L. R. 2 Ad. & E. 365 106 The Mayor, Pack v., 3 Comst. 489 481 The Milan, 1 Lush. 388, 403 84 The N. Dock Co., Wilson v., L. R. 1 Ex. 177 460, 469 The Queen, McFarlane v., 7 Can. S. C. 216 413 v. McLeod, 8 Can. S. C. 1, 16 Am & Eng. R. R. Cas. 301 413 Theobald, P., C. & St. L. R. R. v., 51 Ind. 246 416 Third Ave. R. R., Hamilton v., 53 N. Y. 25 471 Thirst, Blake v., 2 H. & C. 20 123, 127 Thomas, K. C. R. R. v., 79 Ky. 160, 1 Am. & Eng. R. R. Cas. 79 47, 246, 248, 275, 286 G. R. R. v., 68 Ga. 744 351 v. Rhvmney Ry., L. R. 6 Q. B. 266 * 138 M. & C. R. R. v., 51 Miss. 637 374, 375 M. & O. R. R. v., 42 Ala. 672 306 v. W. V. T. Co., 100 Mass. 156 380 v. W. J. Ry., 101 U. S. 71 133 v. D., L. & W. R. R., 19 Blatchf. 533 166 Thirteenth & Fifteenth Sts. Ry. Co. v. Boudrou, 92 Penna. St. 480, 8 Weekly Notes of Cases (Penna. ) 244 47, 48, 57, 290, 495 Thompson, King v., 87 Penna. St. 365 481 Drymala v., 26 Minn. 40 305, 329, 330 v. B., H. & H. Ry., 5 I. C. L. 517 262 v. C. R. R., 54 Ga. 509 60 v. N. E. Ry., 2 B. & S. 106, 110 E. C. L. 17, 54, 200 P., C. & St. L. R. R. v., 56 111. 138 233, 240, 248 Thompson v. C, M. & St. P. Ry., 18 Fed. Rep. 239 368 v. C, L. & C. R. R., 54 Ind. 197 154 Thomason, Union Trust Co. v., 25 Kans. 1, 8 Am. & Eng. R. R. Cas. 589 307, 383 Thorogood v. Bryan, 8 C. B. 115, 65 E. C. L. 78, 85, 86 Thorpe v. N. Y. C. & H. R. R. R., 76 N. Y. 402 136, 243 Thul, A., T. & S. F. R. R. v., 29 Kans. 466, 10 Am. & Eng. R. R. Cas. 378 424 Thurber v. H.,B. M. & F. R. R., 60 JSL Y. 326 69 Thurston v. Martin, 1 Mason 197 470 T. H. & I. R. R., Abend v., Ill 111. 202, 17 Am. & Eng. R. R. Cas. 614 365, 368, 374 v. Buck, 96 Ind. 346, 18 Am. & Ensr. R. R. Cas. 234 28, 266 Everhart v., 78 Ind. 292, 4 Am. 133 133 TABLE OF CASES CITED. CV11 Wing, Waters v. 59 Penna. St. 213 436 Winterbottom D.Wright, 10 M. & W. 109, 115 412 Winters v . H. & St. J. R. E., 39 Mo. 468 285 Willoughby v. C. & N. W. Ry., 37 Iowa 432 434 Wilt, P., G. & N. E. E. v., 4 Whart. 143 388 v. Vickers, 8 Watts 227 390 Wilton v. M. E. E., 107 Mass. 103, 125 Id. 130 209 Witherley v. Eegent's Canal Co., 12 C. B. N. S. 2, 104 E. C. L. 52, 54, 88 Withers v. N. K. Ey., 3 H. & N. 969 29, 32 Witherbee, Burke v., 98 N.Y. 562 301 W. J. Ferry Co., Burton v., 114 U. S. 371 282 W. J. Ey., Thomas v., 101 U. S. 71 133 W.L. Waterworks Co., Matthews v., 3 Camp. 403 120 W. M. E. E. v. Stanley, 61 Md. 266, 18 Am. & Eng. E. E. Cas. 206 15, 279 Abell v., 63 Md. 433, 21 Am. & Eng. E. E. Cas. 503 208, 212, 372 W. N. C. E. E., Gudger v., 87 N. C. 325 150 W., N. & E. E. E., Corliss v., N. H., 21 Am. & Eng. E. E. Cas. 208 406 Woburn v. B. & L. E. E., 109 Mass. 283 412 Wolf, E. & C. E. E. v., 59 Ind. 89 76 v. Studebaker, 65 Penna. St. 459 460 Wolfe, L. & N. E. E. v., 80 Ky. 82, 5 Am. & Eng. E. E. Cas. 625 254 Wolsey v. L. S. & M. S. E. E., 33 Ohio St. 227 374, 378 Wombwell, Eyder v., L. E. 4 Ex. 32, 40 450, 452 Wood, Brotherton v., 3 Brod. & B. 54. 7 E. C. L. 390, 394 Cotton v., 8 C. B. N. S. 568, 98 E. C. L. 6, 112, 434 t;. D.C.S. Ey., 52 Mick 402, 19 Am. & Eng. R. E. Cas. 129 115 v. L. S. & M. S Ry., 49 Mich. 370, 8 Am. A "Eng. R. E. Cas. 478 263 Wood, Tracy v., 3 Mason 132 7 Woodger v. G. W. Ey., L. E. 2 C. P. 31S 462 Woodbridge v. D., L. & W. E. E., 105 Penna. St. 460, 16 Weekly Notes of Cases (Penna.) 55 35, 196 Woodley v. Metn. D. Ey., 2 Ex. D. 334 349, 373 Woodward, Stevens v., 6 Q. B. D. 318 102 Wooslev, C. & St. L. E. E. v., 85 111 370 127 Wonder v. B. & O. E. E., 32 Md. 411 301 Woodward, D., S. P. & P. Ey. v., 4 Colo. 1 431 v. M. S. & N. I. E. E., 10 Ohio St. 121 409 v. C. & N. W. Ey., 23 Wise. 400 490 Wood worth, Day v., 13 How. 371 471 Penna. Co. v., 26 Ohio St. 585 216 Woolf v. Beard, 8 C. & P. 373, 34 E. C. L. 36 Woolsey, Lee v., 16 Weekly Notes of Cases (Penna.) 337 319 Worth, Caswell v., 5 El. & Bl. 849, 85 E. C. L. 36 Worthington, B. & O. E. E. v., 21 Md. 275 233, 240 Holmes v., 2 F. & F. 533 300 Woodruff, A. & C. A. L. E. E. v., 63 Ga. 707 308 Worthen v. G. T. Ey., 125 Mass. 99 282 W. P. Ey. v. Mulhair, 6 Weekly Notes of Cases (Penna.) 508 434 v. Whipple, 5 Weekly Notes of Cases (Penna.) 68 63, 282 v. Gallagher, 16 Weekly Notes of Cases (Penna.) 413 68, 291 Colgan v., 4 Weekly Notes of Cases (Penna.) 400 71 Neir v., 12 Mo. App. 35 481 Wray v. Evans, 80 Penna. St. 102 122 Wright v. L. & N. W. Ey., L. R. 10 Q. B. 29S, 1 Q. B. D. 252 223, 372 De Forrest v., 2 Mich. 368 122 v. Midland Ry., L. R. 8 Ex. 137 39, 140 P., C. & St. L. Ey. v., 80 Ind. 1S2, 5 Am. & Eng. R. R. Cas. 628 416, 436 CV111 TABLE OF CASES CITED. Wright v. N. Y. C R. E., 25 N. Y. 565 323, 356 Winter-bottom v., 10 M. & W. 109, 115 412 v. B. & M. R. R., 129 Mass. 440, 2 Am. & Eng. R. R. Cas. 121 169, 190 v. G. R. R., 34 Ga. 337 417 W. Ry. v. Elliott, 98 111. 481, 4 Am. & Eng. R. R. Cas. 651 305, 308, 345, 364 v. McDaniel, 1U7 U.S. 454 313, 470 W. R. R., Keegan v., 8 N. Y. 175 306 Nolton v., 15 N. Y. 444 216 v. Frederick, 71 111. 294 307 v. Henks, 91 111. 406 160 Butteriield v., 10 Allen 532 168 W. St. L. & P. Ry., Moore v., 84 Mo. 481, 21 Am. & Eng. R. R. Cas. 509 347 Patterson v., 54 Mich. 91, 18 Am. & Eng. R. R. Cas. 130 218, 416 v. Peyton, 106 111. 534 138, 217, 470 v. Rector, 104 111. 296, 9 Am. & Eng. R. R. Cas. 264 109, 213, 263, 265 Strauss v., 17 Fed. Rep. 209 34 V.Wallace, 110 111. 114, 19 Am. & Eng. R. R. Cas. 359 60, 173 v. Shacklet, 105 111.364, 12 Am. & Eng. R. R. Cas. 166 86, 283, 413 Watson v., 66 Iowa 164, 19 Am. & Eng. R. R. Cas. 114 224 W. T. Co. v. Downer, 11 Wall. 129 438 W. T. & R. R., Higgins v., 46 N. Y. 23 109 Wurst, Gramlich v., 86 Penna. St. 74 183, 196 W. U. T. Co. v. Eyster, 91 U. S. 495, note 471 Thomas v., 100 Mass. 156 380 Wyatt v. G. W. Ry., 6 B. & S. 709, 118 E. C. L., 34 L. J. (Q. B.) 204 20,31,37,54,63 Wyld v. Pickford, 8 M. & W. 443 7 W'vlde v. N. R. R., 53 N. Y. 156 413 Wynn v. Allard, 5 W. & S. 524 47 Wyly, A. & W. P. R. R. v., 65 Ga. 120, 8 Am. & Eng. R. R. Cas. 262 60, 159 W. & A. R. R. v. Drysdale, 51 Ga. 644 474 v. Bishop, 50 Ga. 465 510 W. & A. R. R., Galloway v., 57 Ga. 512 510 v. Strong, 52 Ga. 461 510 Hendricks v., 52 Ga. 467 60, 510 v. Atlanta, Ga. , 19 Am. & Eng. R. R. Cas. 233 412 Plutchinson v., 53 Tenn. 634 43, 413 Baker v., 68 Ga. 699 307, 382 v. Jones, 65 Ga. 631, 8 Am. & Eng. R. R. Cas. 267 161 Mitchell v., 30 Ga. 22 263 v. King, 70 Ga. 261, 19 Am. & Eng. R. R. Cas. 255 447 W. & G. Rv. v. Gladmon, 15 Wall. 401 67, 68, 436 W, & J. R. R, ( Gruber v., 92 N. C. 1, 21 Am. & Eng. R. R. Cas. 438 43, 136, 275 W. & M. R. R., Zemp v., 9 Rich. L. 84 . 284 Whitman v., 58 Wise. 40S, 12 Am. & Eng. R. R. Cas. 214 302, 306, 367 Richardson v., 8 Rich. L. 120 192 W. & G. R. R., Lemont v., 1 Mackey (D. C.) 180, 1 Am. & Eng. R. R. Cas. 263 280 W. & R. R. R., Herring v., 10 Ired. 402 74, 192, 193 W. & St. P. R. R., Brown v., 27 Minn. 162 368 Hughes v., 27 Minn. 137 343, 344 Maher v., 31 Minn. 401, 13 Am. & Eng. R. R. Cas- 572 28 W. & T. P. R. R. v. Griffin, 57 Penna. St. 417 135 W. & W. R. R., Parker v., 86 N. C. 221, 8 Am. & Eng. R. R. Cas. 420 168 Manlv v., 74 N. G 455 192 Potter v., 92 K C. 541, 21 Am. & Eng. R. R. Cas. 328 258 Yarborough v. Bank of England, 16 East 6 99, 107 Yates, Assop v., 2 H. & N. 768 373 Yarnall v. St. L., K. C & N. R. R., 75 Mo. 575, 10 Am. & Eng. R. R. Cas. 726 190 Yeaton v. B. & L. R. R., 135 Mass. 418, 15 Am. & Eng. R. R. Cas. 253 346 Yeomans v. C. C. S. N. Co., 44 Cal. 71 216 TABLE OF CASES CITED. C1X Yerger v. Warren, 31 Penna. St. 339, 386 388 Y. N. & B. By., Hutchinson v., 5 Ex. 343 342, 351, 355, 357, 366 Marshall v., 11 C. B. 655, 73 E. C L. 206, 390, 392 Yohn, Bard v., 26 Penna. St. 482 102 Y^ork v. C. K. R., 3 Wall. 113 501 Youll v. S. C. & P. Ry , 56 Iowa 346, 21 Am. & Eng. R. R. Cas. 589 338, 345 Young, N. Y. & E. R. R v., 33 Penna. St. 175 146 v. D., G. H. & M. Ry, Mich. ,19 Am. & Eng. R R. Cas. 417 151 Yonge v. Kentiey, 28 Ga. Ill 275, 440 Yundt, P., C. & St. L. R. R. v., 78 Ind. 373, 3 Am. & Eng. R. R. Cas. 502 164, 165 Y. & M. L. R. R. v. Winans, 17 How. 30 133 Zebe, P. R. R. v., 33 Penna. St. 318, 37 Id. 420 250, 251, 259, 270, 272, 468, 492, 493 Zeigler v. D. & N. R- R , 52 Conn. 543,23 Am. & Eng. R. R. Cas. 400 222 Zell v. Arnold, 2 Pen. & W 292 390 Zemp v. W. & M. R. R., 9 Rich. L. 84 284 Zimmerman v. H. & St. J. R. R., 7 1 Mo. 476, 2 Am. & Eng. R. R. Cas. 191 55, 75 BOOK I. •ME GENERAL NATURE OF THE RAILWAY'S LIABILITY CHAPTER I. NEGLIGENCE. I. Negligence the test of liability. II. The liability as affected by the quasi public character of railways. III. Negligence defiued. IV. Distinctions in degrees of negligence. V. Proximate and remote cause. VI. The liability for injuries caused by an act of God. VII. The liability for injuries caused by an act of the public enemy. VIII. The liability for injuries caused by inevitable accident. IX. The liability for injuries caused solely by the act of the injured person. X. The liability for omissions and acts of commission by agents and servants. XI. The liability for the negligent acts of those who are not agents or servants. XII. The non-performance of a duty imposed by statutes or municipal ordinances. XIII. Ultra vires. I. NEGLIGENCE THE TEST OF LIABILITY. Negligence upon the part of the railway is the test of its liability. 1. It is obvious that the relation between the railway and any person who may happen to be injured in the course of that railway's operations must be either con- tractual, or non-contractual. Of course, if there be a legally enforceable contract between the railway and an individual, the terms of that contract must, so far as they extend, determine the liability of the railway for Z NEGLIGENCE. personal injuries to that individual. But the contract, although full and complete in other respects, may not contain any express stipulation as to the nature and extent of that liability, or, if there be such a stipula- tion, it may be of such a character that it is against the policy of the law to recognize and enforce it. In either of these contingencies the liability of the railway must be rested upon the implied contract between the parties, or, in other words, upon the duty raised by the law and founded upon the relation of the parties. There may also be, where there is a contractual relation between the railway and the injured person, in addition to the obligation created by the contract, a duty raised by the law. If the relation between the railway and the in- jured person be not founded upon contract, the liability of the railway must solely depend upon the nature and extent of the duty imposed by law. 2. In section 140 the persons who may possibly be injured in the course of railway operations are classified, and it is shown that the liability of the railway to the individuals of each class is primarily dependent upon the fact of the railway's negligence, yet, as will be shown in other chapters of this book, that duty upon the part of the railway, whose non-performance is the essential element of its negligence, is not fixed and unvarying, but is dependent on the relation be- tween the individual injured and the railway, and may be affected by the mental or physical incapacity of that individual, and in some cases, also, by the circum- stances under which the injury is inflicted. Thus the railway does not owe a like duty to its passengers, to its servants, to persons who are rightfully upon public highways which adjoin or cross its line, to persons who come upon its line or premises as mere licensees, and to persons who trespass upon its line or premises ; nor THE RAILWAY S GENERAL DUTY. 3 does the railway in all cases owe a like duty to adults and to infants, nor to persons of average physical and mental capacity, and to those who are of less than average capacity, and whose incapacity has been made known to the railway's agents or servants. So, also, whatever be the relation which a j)erson may hold to the railway, the railway may temporarily ow r e to him a higher degree of duty if its agents or servants have, in the exercise of their delegated authority, either by words or by acts, led him to rely on the performance by the railway of that higher degree of duty. For the pur- poses of this introductory chapter, it is enough to say that the general duty of the railway to all who are brought into contact with the operation of its line re- quires it in the original construction and subsequent maintenance in repair of its station approaches, build- ings, and platforms, and of the embankments, bridges, cuttings, tunnels, levels, road-bed, rails, and switches which constitute its line, and of the engines and cars which it employs in the conduct of its business, to use good and sufficient material, to engage skilled engineers and contractors, and to follow correct methods of con- struction ; from time to time to adopt and put into oper- ation such appliances and methods of operation as, having been tested and found to materially contribute to the safety of railway operations, are in j3ractical use, and can, in fact, be adopted by the railway ; to test its machinery and appliances before they are put into use ; from time to time to inspect its line, buildings, ma- chinery, and appliances in order to guard against de- terioration by wear and tear and by lapse of time ; to make and enforce reasonable rules and regulations for the safety of all persons who shall be brought into contact with the operations of its line; to employ a sufficient number of servants ; to select those servants 4 THE QUASI PUBLIC CHARACTER OF RAILWAYS. carefully; to make and enforce regulations for their guidance ; and to use in the operation of its line every reasonable precaution for the safe conduct of its busi- ness; and a failure of duty in any one of these respects will render the railway liable for such injuries as might have been avoided by the performance of the particular duty. II. THE LIABILITY AS AFFECTED BY THE QUASI PUBLIC CHARACTER OF RAILWAYS. The liability of railways for the results of their negligence is neither increased nor diminished by their quasi public character. 3. While it is true that railway corporations, although created by the investment of j>rivate, and not public, capital, are, as grantees of public franchises, subject to governmental regulation and control, so far as they are not protected by the terms of their charters, 1 yet, inas- much as they are primarily organized for jmrposes of private gain, they are private corporations, 2 and their obligation to indemnify those whom they may injure by the exercise of their franchises is neither increased nor diminished by their quasi public character. It is true that Bradley, J., has said 3 that " the business of the common carrier in this country, at least, is emphatically a branch of the public service, and the conditions on which that public service shall be performed by private enterprise are not yet definitely settled ;" but the sug- gestion therein conveyed of a future ascertainment of 1 Munn v. Illinois, 94 U. S. 130 ; C, B. & Q. R. R. v. Iowa. Id. 161 ; G. T. Ry. v. Stevens, 95 Id. 655 : Barton v. Barbour, 104 Id. 135; Miltenberger v. Lopansport Ry., 10G Id. 312; Foster v. Fowler, 60 Penna. St. 27. *Timlow v. P. & R. R. R., 99 Penna. St. 284; P. & L E. R. R. v. Bruce, 102 Id. 23 ; Pierce v The ( lommonwealth, 14 Weekly Notes of Cases 97 ; Pres- byterian Society v. A. & R. R. B., 3 Hill 567 3 G. T. Ry. v. Stevens. 95 U. 8. 660. NEGLIGENCE DEFINED. 5 the essential conditions of contracts of carriage bv rail- way must, in the light of precedent and principle, be construed as an intimation of prospective legislation rather than as an authoritative declaration of existing law, or even as a foreshadowing of a. judicial develop- ment of old principles in new directions, for when a railway has been chartered to construct a line and thereon to transport passengers and goods for hire, its franchise is the capacity thereby conferred of transact- ing the business of a common carrier subject only to such limitations as its charter prescribes, and to such regulations as the State may, in the exercise of its police power, lawfully impose upon individuals doing the like business. Thus much was conceded by Waite, C. J., 1 when he said : " This company, in the transaction of its business, has the same rights, and is subject to the same control as private individuals under the same circum- stances." Nevertheless, it must be borne in mind that in certain jurisdictions the law, from considerations of public policy, denies to railways the privilege of con- tracting for exemption from the results of their negli- gence. III. NEGLIGENCE DEFINED. Actionable negligence is a non-performance of duty causing injury to the person to whom the duty is owing. 4. The word "negligence" is so denned by lexicog- raphers as to convey only the idea of a careless or thoughtless omission to act, but that negligence which is the subject of an action at law includes acts of com- mission and of omission, and comprehends equally that heedlessness which does not consider the possible results of an act, that rashness which cares not whether or not 1 C. B. & Q. K. R. v. Iowa. 94 U. S. 161. O NEGLIGENCE DEFINED. wrong be done by an act, and that wilful malice which intends the doing of wrong, and the distinction between a careless non-performance of duty and the wilful doing of wrong, in the characterization of any par- ticular act, when done by an agent or servant of the railway is only material in determining the responsi- bility of the railway therefor. 5. Alderson, B., 1 has defined negligence as "the omission to do something which a reasonable man, guided by those principles which ordinarily regulate the conduct of human affairs, would do, or doing some- thing which a prudent and reasonable man would not do." Paxson, J., 2 , has with greater brevity defined negligence as " the absence of care according to the cir- cumstances," and Willes, J., 3 has pertinently said : " Confusion has arisen from regarding negligence as a positive instead of a negative word. It is really the absence of such care as it was the duty of the defendant to use." 4 6. Yet it cannot be said that any one of tl^iese defi- nitions is perfectly satisfactory, for they all fail to ade- quately express the three essential elements of actionable negligence, that is, first, the existence of a duty owing by the defendant to the plaintiff or to the person whom that plaintiff represents; second, a non-performance of that duty by an act of commission or omission on the part of the defendant; and third, an injury to the 1 Blyth >. Birmingham Water Works Co., 11 Ex. 781. 2 P. W. & B. R. R. v. Stinger, 78 Penna. St. 225. 3 Grill v. Iron Screw Collier Co., L. R. 1 C. P. G12. 4 Similar definitions are given in P>ridges v. N. L. Ry ., L. R. 7 H. L. 232; Smith v. L. & S. W. Ry., L. R. 5 C. P. 102 ; Johnson v. W. C. & P. R. R-, 70 Penna. St. 366 ; Kay v. P. R. R., 65 Id. 273 ; Turnpike Co. v. P. & T. R. R., 54 Id. 351 ; Fritsch v. Allegheny, 91 Id. 226 ; Jamison v. S. J. & S. C. R. R., 55 Cal. 593, 3 Am. & Eng. R. R. Cas. 350; B. & P. R. R. v. Jones, 95 U. S. 439 ; Washington v. B. & O. R. R., 17 W. Va. 190, 10 Am. & Eng. R. R. Cas. 749. NEGLIGENCE DEFINED. plaintiff or the person whom he represents directly re- sulting from the defendant's non-performance of that duty. There must be both the existence of the duty and the breach of that duty, for otherwise the defendant has done no wrong, for as Erie, C. J., said l there can be no satisfactory proof of negligence as against a defend- ant, " unless it be shown that there existed some duty owing from the defendant to the plaintiff, and that there has been a breach of that duty." So far as regards the right of action, it is immaterial whether the non-per- formance of duty upon the part of the defendant has been wilful or careless, but the form of the remedy and the quantum of damages may be materially affected by the wilful or careless character of the defendant's act, and where the injury is done by the act of a servant, the careless or willful character of the act may be ma- terial in determining the responsibility of the master. There must be actual injury, for otherwise the plaintiff has suffered only damnum absque injuria. 7. Brett, M. R, 2 defines actionable negligence as " the neglect of the use of ordinary care or skill toward a person to whom the defendant owes the duty of ob- serving ordinary care and skill, by which neglect the plaintiff, without contributory negligence on his part, has suffered injury to his person or property." Of all the judicial definitions of negligence, this seems to me to be the most complete, but I venture to suggest that actionable negligence may be denned, with sufficient accuracy for all practical purposes, to be a non -per- formance of duty causing injury to the person to whom the duty is owing. 1 Cotton v. Wood, 8 C. B. N. S. 568, 98 E. C. L. 1 Ileaven v. Pender, 11 Q. B. D. 507. O DEGREES OF NEGLIGENCE. IV. DISTINCTIONS IN DEGREES OF NEGLIGENCE. Distinctions in degrees of negligence are noiv generally regarded as in t important. 8. The earlier cases, 1 following the civil law, attempted to classify negligence under the three categories of " slight," " ordinary," and " gross," but, bearing in mind the definitions quoted in the preceding paragraph, distinctions between the degrees of negligence become of little or of no importance, for the want of that care w 7 hich the circumstances of the particular case make necessary is the foundation of a legal liability, whether it be in itself slight, ordinary, or gross negligence. This view has been sanctioned by high authority. Lord Denraan 2 has said : " it may well be doubted whether between gross negligence and negligence merely any intelligible distinction exists." Lord Cranworth 3 has said that he "could see no difference between negligence and gross negligence ; that it was the same thing, with the addition of a vituperative epithet." In the Supreme Court of the United States, Curtis, J., 4 has character- ized as impracticable any distinction between degrees of negligence ; and Davis, J., 5 has said : '* gross negli- gence is a relative term ; after all, it means the absence of care that was necessary under the circumstances." The same view has been taken in other cases. 6 9. But Bradley, J., 7 has said : " in each case the 1 Duff v. Budd, 3 Brod. & B. 177, 7 E. C. L. ; Wyld v. Pickford, 8 M. & W. 443; Owen v. Burnett, 4 Tyr 133; Smith v. Home, 8 Taunt. 144, 4 E. C L. ; Tracy v. Wood, 3 Mason 132 ; Foster v. Essex Bank, 17 Mass. 479. 2 Hinton v, Dibbin, 2 Ad. & El. N. S. 661, 42 E. C. L. 3 Wilson v. Brett, 11 M. & W. 115. 4 Steamboal New World v. King, 16 How. 469. 5 M. & St. P. Ry. v. Arms, 91 U. H. 495. 6 Beal v. S. D. Ry., 3 H. & C. 341 ; Grill v. Iron Screw Collier Co., L. R. 1 C. P. 612; Briggs v. Taylor, 28 Vt. 180; Perkins v. N. Y. C. R. R., 24 N.Y. 196. 7 N. Y. C. R. R. v. Lockwood. 17 Wall. 357. PROXIMATE AND REMOTE CAUSE. 9 negligence, whatever epithet we give it, is failure to bestow the care and skill which the situation demands ; and hence it is more strictly accurate, perhaps, to call it simply ' negligence.' And this seems to be the ten- dency of modern authorities. If they mean more than this and seek to abolish the distinctions of degrees of care, skill, and diligence required in the performance of various duties, and the fulfillment of various con- tracts, we think they go too far, since the requirement of different degrees of care in different situations is too firmly settled and fixed in the law to be ignored or changed." V. PROXIMATE AND REMOTE CAUSE. Tlie negligence of the railway must be the proximate, and not the re- mote cause of the injury to the plaintiff. 10. It is, however, not sufficient to define negligence in abstract terms. It is necessary, also, to discriminate between those causes of injury to individuals which do, and those which do not, result from negligence on the part of the railway, and to illustrate the distinction by reference to adjudged cases. 11. The negligence of the railway must have been the efficient cause of the injury, for as Gibson, C. J., 1 has said, the defendant " is answerable for the conse- quences of negligence, and not for its abstract exist- ence," and as Cairns, L. C., 2 has said, " the negligence must in some way connect itself, or be connected by evidence, with the accident. It must be * * * incuria dans locum injuries" If its negligence be the efficient cause of the injury, the railway must, as Nares, J., 3 1 Hart ?-. Allen, 2 Watts 116. 2 M. Ry. v. Jackson, L. R. 3 App. Cas. 198. 8 Scott v. Shepherd, 2 BL 892. 10 PROXIMATE AND REMOTE CAUSE. said, with regard to the original thrower of that squib which has played so important a part in the history of the law, be " answerable for all the consequences " of its negligence; but those consequences in a legal sense are the proximate and not the remote consequences, for as Lord Bacon 1 said, in explanation of the maxim " causa proximo, non remota spectatur," "it were infinite for the law to judge the causes of causes and their im- pulsions one of another ; therefore it contenteth itself with the immediate cause, and judgeth of acts by that without looking to any further degree." 12. Of course, the soundness of the rule as thus stated is generally conceded, but there is often great practical difficulty in its application to the facts of particular cases. It would, therefore, be desirable to obtain, if it were possible, a test by which to determine whether or not any specific act of negligence be the proximate cause of the injury in any |)articular case. 13. Different tests have been suggested. In one class of cases the suggested test is the existence of an unbroken connection between the wrongful act or omis- sion and the injury. The theory of this test is thus explained by Strong, J., 2 "we do not say that even the natural and probable consequences of a wrongful act or omission are, in all cases, to be chargeable to the misfeasance or nonfeasance. They are not, when there is a sufficient and independent cause operating between the wrong and the injury. In such a case the resort of the sufferer must be to the originator of the inter- mediate cause. But when there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect and proximate to it. The inquiry must, therefore, always be, whether there was any inter- mediate cause disconnected from the primary fault and 1 Max. Eeg. 1. 2 M. & St. P. Ey. v. Kellogg, 94 U. S. 4fi9, 475. PROXIMATE AND REMOTE CAUSE. 11 self-operating which produced the injury. Here lies the difficulty. But the inquiry must be answered in accordance with common understanding. In a suc- cession of dependent events, an interval may always be seen by an acute mind between a cause and its effect, though it may be so imperceptible as to be overlooked by a common mind. * * * In the nature of things, there is in every transaction a succession of events more or less dependent upon those preceding, and it is the province of a jury to look at this succession of events or facts and ascertain whether they are naturally and probably connected with each other by a continu- ous sequence or are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time." 1 14. Another suggested test is that the injury should be such a consequence as, under the surrounding cir- cumstances of the case, might and ought to have been fore- seen by the wrongdoer as likely to follow from his act. Bovill, C. J., 2 states it thus : " No doubt one who com- mits a wrongful act is responsible for the ordinary con- sequences which are likely to result therefrom ; but, generally speaking, he is not liable for damage, which is not the natural or ordinary consequence of such an act, unless it be shown that he knows, or has reasonable means of knowing, that consequences not usually re- sulting from the act are, by reason of some existing cause, likely to intervene so as to occasion damage to a third person. Where there is no reason to expect it, and no knowledge in the person doing the wrongful act that such a state of things exists as to render the dam- 1 Substantially the same view is taken in Ins. Co. v. Tweed, 7 Wall. 44 ; Scheffer v. W. C. V. M. & «-. S. R. R., 105 U. S. 249 ; Ins. Co. v. Seaver, 19 Wall. 531 ; Fawcett v. P. C. & St. L. Ry. 24 W. Va. 755. * Sharp v. Powell, L. It., 7 C. P. 253. 12 PROXIMATE AND REMOTE CAUSE. age probable, if injury does result to a third person, it is generally considered that the wrongful act is not (lie proximate cause of the injury so as to render the wrongdoer liable to an action." In the same case Grove, J., said : " The expression, the ' natural ' con- sequence, which has been used in so many eases, and which I myself have no doubt often used, by no means conveys to the mind an adequate notion of what is meant ; ' probable ' would, perhaps, be a better expres- sion," and Keating, J., based his judgment for the defendant on the fact that the damage in question was not " one which the defendant could fairly be expected to anticipate as likely to ensue from his act." 15. The same view was obviously present to the mind of Bramwell, B., 1 when he said, " it would be mon- strous to hold the defendants responsible because they did not foresee and prevent an accident, the cause of which was so obscure that it was not discovered until many months after the accident had happened." Paxson, J., 2 states the same view clearly and forci- bly, thus, " a man's responsibility for his negligence, and that of his servants, must end somewhere. There is a possibility of carrying an admittedly correct principle too far. It may be extended so as to reach the reductio ad absurdum, so far as it applies to the practical business of life. We think this difficulty may be avoided by ad- hering to the principle * * * that, in determining what is proximate cause, the true rule is that the injury must be the natural and probable consequence of the negli- gence — such a consequence as, under the surrounding cir- cumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act. This is not a limitation of the maxim causa 1 Blyth v. Birmingham Waterworks Co., 11 Ex. 785. 1 Hoag v. L. S. & M. S R. R., 85 Penna. St. 293. PROXIMATE AND REMOTE CAUSE. 13 proximo, non remota spectatur: it only affects its appli- cation." 1 16. But, as is pointed out in the "judgments in Smith v. L. & S. W. Ry., 2 it must be borne in mind in apply- ing the last suggested test that a defendant, who does a negligent act, ought to be held responsible for any natural consequences of that act, although the particular consequence which resulted from the act either was not or could not have been anticipated by him. Neither of the suggested tests is so precise and definite that its application to the facts of any possible case will, at once and beyond doubt, determine the liability of the railway to the plaintiff, and in the end the correct solution of the problem in any case is dependent upon the exercise of a sound judgment by the judge and the jury ; for, it is for the jury, as Paxson, J., 3 has said, "to ascertain the relation of one fact to another, and how far there is a continuation of the causation by which the result is linked to the cause by an unbroken chain of events, each one of which is the natural, foreseen, and necessary result of such cause." 4 But it is for the court in this, as in all other cases which go to the jury, to determine in the first instance whether, assuming the truth of the evidence, the jury can reasonably find a verdict for the party upon whom, under the pleadings, the burden of proof rests. 1 The last-mentioned test is adopted as the correct one in Greenland v. Chaplin, 5 Ex. 243; Hoag v. L. 8. & M. S. R. R., 85 Penna. St. 293; P. S. Ry. ?\ Taylor, 104 Id. 306 ; Hunter v. Wanaraaker, 17 Weekly Noteg of Cases (Penna.) 232, 1 Penna. Sup. Ct. Digest 7. 2 L. R., 6 C. P. 14. 3 Hoag v. L. S. & M. S. R. R., 85 Penna. St. 294. * Webb v. R. W. & O. R. R., 49 N. Y. 420 ; P. R. R. v. Hope, 80 Penna. St. 373 ; P. & N. Y. C. R. R. v. Lacey, 89 Id. 458 ; M. & S. P. Ry. v. Kellogg, 94 U. S. 469; L. E. R. R. v. McKeen, 90 Penna. St. 122; P. W. & P>. R. R. v. Brannen, 17 Weekly Notes of Cases (Penna.) 227 ; Billman v. I. C. & L. R. R., 76 Ind. 166; 6 Am. & Eng. R. R. Cas. 41. 5 Hoag v. L. S. & M. S. R. R., 85 Penna. St. 294. 14 INJURIES IN AVOIDING DANGER. 17. Where injuries are inflicted, in the course of rail- way operations, upon the person of one who is himself without fault, those injuries are generally so immediate and all their effects so obviously connected, that there is no reason to doubt that the damage is the proximate re- sult of some particular act or omission on the part of the railway, but when the question of proximate or remote cause is raised, it turns either on the relation of the in- juries, whatever they may be, to the particular act or omission on the part of the railway, or on the connec- tion between some subsequently developed injury to the plaintiff and his original injury. 18. As illustrations of the first class there are the cases of injuries suffered by one in attempting to escape from a situation of apparent peril to life or limb in which he has been placed by negligence on the part of the rail- way, and the cases of injuries incurred in attempting to obviate some more or less serious inconvenience, which the railway's negligence or breach of contract has brought upon one. As illustrations of the second class, there are the cases of disabilities or maladies supervening upon the immediately apparent injuries inflicted by the railway's negligence. Tfie railway is liable for injuries suffered by one in attempting to escape from a situation of apparent peril to life or limb, in which he has been placed by the negligence of the railway. 19. The leading case is Jones v. Boyce, 1 where the plaintiff was a passenger by the defendant's coach ; a rein having broken, and one of the leaders becoming ungovernable, whilst the coach was passing a hill, the plaintiff, apprehending the overturning of the coach, which, however, was not overturned, jumped off, and in 1 1 Starkie 493, 2 E. C. L. INJURIES IN AVOIDING INCONVENIENCES. 15 so doing broke his leg, whereas if he had remained on the coach he would not have been injured. Lord Ellen- borough directed the jury that " to enable the plaintiff to sustain the action, it is not necessary that he should have been thrown off the coach ; it is sufficient if he was placed by the misconduct of the defendant in such a situation as obliged him to adopt the alternative of a dangerous leap or to remain at certain peril. If that position was occasioned by the default of the defendant, the action may be supported. On the other hand, if the plaintiff's act resulted from a rash apprehension of danger which did not exist, and the injury which he sustained is to be attributed to rashness and imprudence, he is not entitled to recover. The question is whether he was placed in such a situation as to render what he did a prudent precaution for the purpose of self-preser- vation." 1 The railway is liable for injuries incurred by one in attempting, by an ad not obviously dangerous, to obviate a serious inconvenience to him, caused by the negligence of the railway. 20. Thus, in Adams v. L. & Y. Rv., 2 the door of the carriage in which the plaintiff was riding would not remain shut while the train was in motion, but there was room enough for the plaintiff to sit away from the door, and the weather was good. The plaintiff, having 1 See also Stokes v. Saltonstall, 13 Pet. 181 ; N. & C. R. R. v. Erwin (Tenn.), 3 Am. & Eng. R. R. Cas. 4(55; Caswell v. B & W. R. R., 98 Mass. 194; E. T. V. & G. R. R. v. Gnrley, 12 Lea (Tenn.) 46, 17 Am. & Eng. R. R. Cas. 568 ; G. R. R. v. Rhode-. 56 ( ra 645 ; C. R. R. v. Roach, 64 Id. 685, 8 Am. & Eng. R. R Cas. 79 ; P. B. & W. R. R. v. Rohrman, 13 Weekly Notes of Cases 258; 12 Am. & Eng. R. R. Cas. 176; Smith v. St. P. M. & M. Ry., 80 Minn. 169, 9 Am & Eng R. R. Cas. 262; Iron R. R. v. Mowery, 36 Ohio St. 418, 3 Am. & Eng. R. R. Cas. 361 ; Buel v. N. Y. C. R. R., 31 N. Y. 314 ; S. W. R. R. v. Panlk, 21 Ga, 356 ; Wilson v. N. P. R. R., 26 Minn. 278 ; M. & W. R. R. r. Winn, 26 Ga. 250. * L. R. 4 C. P. 739. 16 INJURIES IX AVOIDING INCONVENIENCES. shut the door three times, attempted for the fourth time to elose it within three minutes of the time of arrival of the train at a station, and, in so doing, he fell out and was injured. Judgment was entered for the defendant upon the ground that, as the inconvenience to the plaintiff from the open door was slight, and the peril in attempting to close it was considerable, the in- jury resulting from that attempt was caused solely by his own carelessness. 1 On the other hand, in W. M. R. R. v . Stanley, 2 a passenger was held entitled to re- cover for injuries received in attempting to close the door of his car while passing through a tunnel, the railway having omitted to light the car, and the open door inconveniencing the plaintiff and the other pas- sengers in the car by its admission of smoke and cinders. In cases such as these, probably the true ground of de- cision is that the plaintiff cannot recover if in attempt- ing to avoid that which is merely inconvenient, and in no sense dangerous, he encounters a danger obviously apparent to the minds of reasonable men ; but, on the other hand, as Brett, J., 3 said, " if the inconvenience is so great that it is reasonable to get rid of it by an act not obviously dangerous, and executed without careless- ness," the railway " would be liable for any injury that might result from an attempt to avoid such inconveni- ence." 1 In the later case of Gee v. M. Ey., L. R. 8 Q. B. 161, Adams v. L. & Y. Ry. is commented on, and the application to the facts of that case of the doc- trine as above stated, questioned. 2 61 Md. 266, 18 Am. & Eng. R. R. Cas. 206. s Adams v. L. & Y. Ry., L. R. 4 C. P. 744. INJURIES IN BOARDING OR LEAVING TRAINS. 17 Tlie railway ought not to be held liable in damages for injuries which result not from its negligence, but solely from the attempt of the in- jured person to obviate by his own rash act an inconvenience caused to him by the railway s breach of contract. 21. There are also other cases which, though in reality very different from those referred to in section 19, are generally decided upon the same principle, and those are the cases of passengers who, when the railway does not bring its train to a stop at a station, or does not stop the train for a sufficient length of time to enable them to enter or alight from the train in safety, attempt to get on or off the train while it is in motion, and are thereby injured. Many of the authorities hold that the rule of decision in such cases is that the rail- way is to be held liable for injuries thus caused, unless the jury shall find that the person injured in getting on or off the cars encountered a danger obviously apparent to the minds of reasonable men. Other authorities hold, that such injuries are self inflicted, and that the railway is not to be held liable therefor. The principle involved in these cases was ruled in Clayards v. Dethick, 1 where the defendant had dug a dangerous trench in the only outlet from a mews, and the plaintiff's horse in coming- out of the mews fell into the ditch and was killed. Den- man, C. J., directed the jury "that it could not be the plaintiff's duty to refrain altogether from coming out of the mews merely because the defendant had made the passage in some degree dangerous, * * * though, if the plaintiff had persisted in running upon a great and obvious danger his action could not be maintained." A verdict having passed for the plaintiff, a rule for a new trial was discharged. Clayards v. Dethick is cited with approval and followed in Thompson v. N. E. Ry., 2 1 12 Q. B. 439 ; 64 E. C. L. * 2B. &S. 106; HOE. C. L. J 8 INJURIES IN BOARDING OR LEAVING TRAINS. where the defendants as proprietors of a dock and tidal basin, which they had opened for use before its con- struction had been completed by dredging it throughout to the required depth, were held liable in damages to the owner of a ship which had grounded in leaving the dock, although the pilot knew that the channel of requisite depth was narrow, for the verdict of the jury having negatived negligence on the part of the plain- tiff, the plaintiff's recovery was not to be prevented without proof that the state of the basin was such as to render it imprudent to attempt to take the vessel out. In Siner v. G. W. By., 1 where it was held that the railway was not liable to a female passenger who was injured in descending from a railway carriage, because she chose to jump down rather than to avail herself of the steps of the carriage, Kelly, C. B., said, in his dis- senting judgment, 2 " I am clearly of opinion, however, that a railway company are not entitled to expose any passenger to the necessity of choosing between two alter- natives, neither of which he could lawfully be called on to choose, namely, either to go on to Bangor or to take his chance of danger and jump out ; and if they do so the choice is made at their peril." 3 22. On the other hand, in Lax v. Darlington, 4 Bramwell, L. J., said : " A person traveling on a railway is taken to some place where he ought not to have been taken — beyond a platform, for instance. He jumps out, risking the danger, and hurts him- self. In my opinion in such a case as that he ought to have no remedy against the company for the hurt; if he chooses to jump out and hurt himself, he 1 L. R. 3 Ex. 150 ; 4 Id. 117. 2 L. R. 3 Ex. 156. 8 Similar views are expressed in Filer v. N. Y. C. R. R., 49 N. Y. 47 ; P. R. R. v. Kilgore, 32 Penna. St. 292; Johnson v. W. C. & P. R. R., 70 Id. 357, and in many other cases. * 5 Ex. D. 35. INJURIES IN BOARDING OR LEAVING TRAINS. 10 must take the hurt. What he must do is to sit in the carriage and be carried on beyond where he wants to go, and then bring his action against the com- pany for not affording him proper accommodation to get out. I have no doubt of the good sense of that ; I have not a misgiving of it, and I cannot agree to a great deal of what was said in the case of Clayards v. Dethick. 1 It was there asked, 'was the cabman bound to stay in all day ?' Bound ! Bound to whom ? A person being bound supposes his being bound to somebody. It is an inaccurate expression. One does not care about words except when they mislead. The expression 'bound' was used there. Why, of course, he was not bound, because there was nobody to say to him, ' you shall.' But if he chooses to go out with an obvious danger before him he must take the conse- quences. Suppose a man is shut up in the top room of a house unlawfully, is he bound to stay there ? He is not bound to do anything of the kind; he may jump ' out if he likes to run the risk of breaking his neck or his limbs ; he may let himself down by a rope or a ladder, but if he runs the risk of getting out and breaks his neck, the person who shuts him up is not guilty of manslaughter ; and if he breaks his leg he ought not to have any right of action against that person, although he was not bound to stay there. Then there was an- other expression used which I cannot help thinking was an unfortunate one. It was this : ' What would a prudent man do?' Just see the consequence of that sort of reasoning. A prudent cabman with a good horse having a shilling fare offered to him would have stopped at home ; a prudent cabman with a bad horse and a pound fare would have chanced it. The consequences would be that he could recover if he hurt a bad horse, 1 12 Q. B. 439 ; 64 E. C. L. 20 INJURIES IN BOARDING OR LEAVING TRAINS. but could not recover if he hurt a good one. The truth is, to talk of what a prudent man would do is a mis- leading way of considering the matter. A prudent man would lead a forlorn hope under some circum- stances, because the possible gain, in his estimation, would be equal to the risk. It is not, therefore, a question of prudence. I dare say a prudent man might jump out of a train going very fast, if he saw some im- minent danger to his wife or child, or anybody for whom he had great affection, and he could immediately go and rescue them. It is not, therefore, a question of prudence as far as he is concerned. I think that case — I should not have discussed it at the length I have done if an erroneous idea was not conveyed by it — can only be justified on a ground which, I think, will be found, especially in the judgment of Wightman, J., and upon which I am inclined to think some of the judges really decided it. It is this : That the danger there was not an obvious one ; that when the cabman went out he got into trouble from what, in truth, was a pitfall, the nature of which he was unaware of, but which had been prepared for him by the defendant. Upon that ground, perhaps, the judgment may be sup- ported ; but I have a misgiving, even then, whether, when there was a danger of accident, it was not his — I will not say his duty — but whether it was not for him to ascertain the extent of it before he ran the risk of it. However, I think it is upon that ground only that the case can be sustained. It is said that it has been after- ward cited and adopted in Wyatt v. G. W. Ky. 1 It was no doubt cited and adopted, but I am very much inclined to think it was adopted upon the principle that I have mentioned, and that may be seen especially from the judgment of the majority of the court. If Clayards v. 1 6 B. & S. 709 ; 118 E. C. L. ; 34 L. J. (Q. B.) 204. INJURIES IN BOARDING OR LEAVING TRAINS. 2L Dethick and Wyatt v. Great Western By. Co. are adopted to their full extent, I am constrained to express my distrust of those cases." 23. The result reached in Wyatt v. G. W. By., 1 is inconsistent with the doctrine of Clayards v. Dethick, for it was there held that a person who while traveling on a highway had been injured in opening for himself, the railway servants being absent, a statutory gate which a railway had erected at a local crossing, and which, when closed, barred the highway, could not recover. Bram- well, B., said forcibly in Siner v. G. W. Ry., 2 "suppose the defendants had covenanted with the plaintiff, under seal, to carry her to a particular place, and to provide proper means of exit from the carriage, and that the plaintiff, declaring upon the covenant, alleged a breach of con- tract, and then went on to say, per quod, I jumped from the carriage, and in so doing hurt myself, would that be per quod f Would it be damage legitimately flowing from the breach of contract ? I think not. She could only say that her act was led or induced, not that it was caused, by their breach of contract. It could not be said that her jumping out was a legitimate conse- quence of their neglect, and it is none the more so because she sues in tort. The question has been argued as if it were one of contributory negligence ; but it is not. The whole mischief resulted from the plaintiff's own act, and even assuming negligence in the defend- ants, that negligence was not the cause of the accident." 24. Unquestionably, the true ground of decision in cases of this class is that which is suggested by the dicta quoted from the judgment of Bramwell, J., in Siner's case. The obligation of a railway to take up or set down a passenger at a particular station is an obligation de- 1 6 B. & S. 709 ; 118 E. C. L. 2 L. R. 3 Ex. 154. 22 INJURIES IN BOARDING OR LEAVING TRAINS. pendent solely upon the contract between the particular passenger and the railway, and not an obligation arising out of the general duty of the railway to its passengers. When, therefore, the railway does not stop its train at the particular station at which it has contracted to receive or deliver the passenger, or when the railway does not stop its train at that station for a sufficient time to enable the passenger to enter or alight from its car, it thereby breaks its contract with the passenger, but it does not inflict upon him that sort of wrong which the law characterizes as a tort. Under such cir- cumstances the passenger who, by the failure of the railway to stop its train, is carried past his station, or is left on the station platform, as the case may be, has his remedy by an action at law against the railway for the breach of its contract, and in that action he can recover the damages which naturally and necessarily result from that breach of contract, that is, compensa- tion for any inconvenience to which the railway's breach of contract has put him. But if, not content with the remedy which the law gives him, or im- pelled by a natural desire to carry out his precon- ceived purpose, he jumps upon or from the train in motion, or does any other act which is the cause of injury to him, the railway ought not to be held liable, for that injury, however unfortunate and however serious, is the result not of the railway's failure to stop its train in accordance with its contract, but of his own rash act. Black, C. J., puts this very forcibly, 1 saying, " If a passenger be negligently carried beyond the sta- tion where he intended to stop, and where he had a right to be let off, he can recover compensation for the inconvenience, the loss of time, and the labor of travel- ing back; because these are the direct consequences 1 P. R. R. v. Aspell, 23 Penn. St. 147. INJURIES IN AVOIDING HIGHWAY OBSTRUCTIONS. 23 of the wrong done to him. But if he is foolhardy- enough to jump off without waiting for the train to stop, he does it at his own risk, because this is gross imprudence, for which he can blame nobody but him- self." If the views herein expressed be sound, those cases have been wrongly decided wherein it has been held that, under such circumstances, the plaintiff can recover. 25. Another class of cases in which the same result should be reached is that of adult persons, who, find- ing a railway crossing of a highway blocked by cars, attempt to pass under or climb over the cars, and in so doing are injured. In these cases there is, of course, no contractual relation between the person injured and the railway, but every such person has his remedy by action against the railway for his individual loss resulting from its obstruction of the highway, and any injuries which he may bring upon himself in his efforts to avoid the inconvenience caused by that obstruction are self in- flicted, and are not justly chargeable to the railway. Of course, where, under such circumstances, the person injured, is by infancy or otherwise, incapacitated from realizing the danger of doing the act which causes the injury, a different principle applies, and the railway may justly be held liable for its negligence in leaving upon a highway that which may become a cause of injury to persons so incapacitated. The mistaken result which has been reached in so many of the cases of injuries incurred in getting on or off moving cars, or in climb- ing over or in passing under cars which obstruct a highway crossing, is largely due to the fact that those cases are, in general, considered to raise questions of contributory negligence, whereas they really raise the question of the relation between the plaintiff's injury and the railway's non-performance of its duty as the proximate or remote cause of that injury. 24 ILLUSTRATIONS OF REMOTE NEGLIGENCE. Illusfratio7is of the general doctrine as to proximate and remote cause: cases in which the negligence proven was held to be too remote. 26. In further illustration of the general doctrine as to proximate and remote cause, reference may be made to the following cases, in which the negligence proven was held to be too remote to be considered the efficient cause of the injury for which the plaintiff sought repa- ration. In P. C. & St. L. Ry. v. Staley, 1 the railway having unlawfully obstructed a highway crossing by a train at rest, the plaintiff, in order to avoid the ob- struction, turned into another street, and there was in- jured by falling on the ice. In P. S. Ry. v. Taylor, 2 the railway had permitted a derailed and overturned car to remain at the side of a highway crossing, and the plaintiff's horse was frightened thereby. In Jack- son v. N. C. & St. L. Ry., 3 the railway obstructed a highway crossing by a train, and the plaintiff, in avoid- ing the obstruction by driving across the line at a point where there was no public crossing, and, consequently, no planking between the rails, was jolted out of his vehicle, and thereby injured. In M. Railway v. Jack- son, 4 the carriage in which the passenger was riding being overcrowded, other persons attempted at a station to force their way into the carriage, and the plaintiff, having risen to prevent their entrance as the train started, in order to save himself from falling, put his hand on the edge of the door, where it was caught and crushed by the act of the railway's servant in closing the door, in the performance of his duty. In Hobbs v. L. & S. W. Ry., 5 the railway set down the plaintiff and his wife and children, at night and in a rain storm, at a 1 41 Ohio St. 118, 19 Am. & Eng. R. R. Cas. 381. s 104 Penna. St. 306. 8 13 Lea (Tenn.) 491, 19 Am. & Eng. R. R. Cas. 433. * 3 App. Cas. 193. 6 L. R. 10 Q. B. 111. ILLUSTRATIONS OF REMOTE NEGLIGENCE. 25 station several miles distant from, that to which it had agreed to carry them, and the wife contracted a severe illness from walking in the storm. 1 27. In Cornman v. E. C. Ry., 2 the plaintiff, while in- quiring for a parcel at a station upon a holiday, was forced by a crowd of passengers against a weighing machine, the foot of which projected about six inches above the level of the platform, and was injured by falling over that machine. In Hunter v. Stewart, 3 the plaintiff, an unmarried woman, was disfigured by the negligence of a carrier, and her possibility of successful marriage thereby diminished. In Williamson v. G. T. Ry., 4 the plaintiff was wrongfully expelled from a car, and in leaving it fell and was injured. In Phyfe v. M. Ry., 5 the plaintiff was so severely hurt as to be confined to his house for a time, and he alone being able to open the safe at his place of business, some gold which was stored therein could not be sold, and he thereby lost the profits on its sale. In McClelland v. L. N. A. & C. Ry., 6 the railway was held not to be liable in damages for the death of a drunken jmssenger, who, having been rightfully expelled from a train, subsequently wandered upon the line and was run over by another train, but without fault on the part of the servants in charge of 1 See, also, in support of the rule in Hobbs' case : Walsh v. C. M. & St. P. Ry., 42 Wise. 23; L. & N. R. R v. Fleming, 14 Lea (Tenn.) 128, 18 Am. & Eng. R. R. Cas. 347 ; Lewis v. F. & P. M. Ry., 54 Mich. 55, 18 Am. & Eng R. R. Cas 263 : Francis v. St. L. T. Co., 5 Mo. App. Cas. 7 ; St. L., K. C. & N R. R. v. Trigg, 74 Mo. 147, 6 Am. & Eng. R. R. Cas. 345 ; St. L., K. C. & N. R. R. v. Marshal], 78 Mo. 610, 18 Am. & Eng. R. R. Cas. 248 ; sed cf. Brown v. C. M. & St. P. Ry., 54 Wise. 342, 3 Am. & Eng. R. R. Cas. 444 ; C, H. & I. R. R. v. Eaton, 94 Ind. 474, 18 Am. & Eng. R. R. Cas. 254; L. E. & W. Ry. v. Fix, 88 Ind. 381, 11 Am. & Eng. R. R. Cas. 109. 2 4 H. & N. 78) *\ 9 ' 3 4 7 Me. 419. * 17 Up. Can. (C. P.) 615. 5 30 Hun (N. Y.) 377. • 94 Ind. 276, 18 Am. & Eng. R. R. Cas. 260. 2G ILLUSTRATIONS OF PROXIMATE NEGLIGENCE. that t rain. 1 In Henry v. St. L., K. C. & N. Ry., 2 a rail- way servant having directed a passenger to change from one car to another at a way station, and the passenger, having as directed gone to the other car, and having been informed by a railway servant that he would not be permitted to remain in that car because its train was not made up, alighted therefrom, and while standing on the line was injured by another train, and it was held that his expulsion from the car was not the proximate cause of his injury. Illustrations of the general doctrine as to proximate and remote cause : cases in which the negligence proven was held to be the proximate cause of the injury. 28. In the following cases the negligence proven was held to be a sufficiently proximate cause of the injury to render the railway responsible therefor ; in P., W. & B. R. R. v. Brannen, 3 the negligent blowing of an engine whistle by an engine driver, thereby frightening a horse on a highway, who, in running away, ran over and injured the plaintiff while walking on the high- way ; 4 the negligence of a railway in not maintaining its roadbed and rails in a condition for the safe move- ment of trains, whereby an engine was derailed, and the engine driver in reversing the lever broke his arm ; 5 the act of the railway's servant in mistakenly putting a female passenger off the train at a station three miles short of the station to which the railway had contracted to carry her, whereby she, being preg- 1 See, also, Haley v. C. & N. W. R. R-, 21 Iowa 15 ; Ry. v. Valleley, 32 Ohio St. 345. 2 76 Mo. 288, 12 Am. & Eng. R. R. Cas. 1.36. 3 17 Weekly Notes of Cases (Penna.) 227. See also Lowery v. M. Ry., 99 N. Y. 158. * See, also, Billman v. I. C. & L. R. R., 76 Ind. 166, 6 Am. & Eng. R. R. Cas. 41. * Knapp v. S. C. & P. Ry., 65 Iowa 91, 18 Am. & Eng. R. R. Cas. 60. ILLUSTRATIONS OF PROXIMATE NEGLIGENCE. 27 nant and being unable to ojbtain means of conveyance, walked to her destination, and thereby brought on a miscarriage and subsequent illness. 1 So, where a pas- senger, having been ejected from a train in such man- ner that he was run over by that train, and subse- quently by another train of the railway defendant, and death ensued, it was held that there was a cause of action vested in his personal representatives under the Georgia statute, whether the first or second train actually caused his death. 2 So, in Eames v. T. & N. O. E. R, 3 it was held that the failure of a railway to cut clown on its right of w^ay bushes which afforded cover to straying cattle was the proximate cause of injury to cattle who, suddenly emerging from such cover and going upon the line, were run over by a train before the servants in charge of it could bring it to a stop. So, in Hayes v. M. C. E. E., 4 where the railway was, by reason of its failure to perform a statutory duty of fencing its line on the borders of a public park, held liable for the injuries of a boy who had strayed upon the line and been run over by a train, Matthews, J., said : " It is further argued that the direction of the court below was right, because the want of a fence could not reasonably be alleged as the cause of the injury. In the sense of an efficient cause, causa causans, this is no doubt strictly true ; but that is not the sense in which the law uses the term in this connection. The question is, was it causa sine qua non — a cause which, if it had not existed, the injury would not have taken place — an occasional cause ; and that is a question of fact, 1 Brown v. C. M. & St. P. Ry., 54 Wis. 342, 3 Am. & Eng. R. R. Cas. 444. 2 S. C. R. R. v. Nix, 68 Ga. 572. 3 63 Tex. 660, 22 Am. & Eng. R. R. Cas. 540. * 111 U. S. 228, 15 Am. & Eng. R. R. Cas. 394. 28 SUBSEQUENTLY DEVELOPED INJURIES. unless the casual connection is evidently not proxi- mate." 1 The raihcay is liable for subsequently developed injuries that can- not be proved to have resulted from a sufficient and independent 29. Where the question of proximate and remote cause turns on the connection between some subse- quently developed personal injury to the plaintiff and the original injury, the rule deducible from the cases seems to be that the railway is responsible for every such subsequently developed injury that cannot be proven to have resulted from a sufficient independent cause ; thus railways have been held liable for cancer following at an interval of three weeks after a blow on the breast of a female passenger ; 2 for death by malarial fever fol- lowing upon a fall into a creek at night; 3 for the death of a child by pneumonia following upon the shock of a blow from an engine ; 4 for hernia following nine months after a scalding by an escape of steam from an engine ; 5 for the death of a person under a surgical operation which was made necessary by the original injury, and which, although performed by a competent surgeon, was unsuccessful; 6 for a pre- mature confinement and birth of a dead child re- 1 See also Williams v. G. W. Ry., L. R. 9 Ex. 157 ; Maher v. W. & St. P. By., 31 Minn. 401, 13 Am. & Eng. R. R. Cas. 572 ; Smith v. St. P., M. & M. Ry., 30 Minn. 1 G9, 9 Am. & Eng. R. R. Cas. 262 ; Hynes v. S. F. & N. P. R. R., 65 Cal. 316, 20 Am. & Eng. R. R. Cas. 486 ; Schmidt v. M. & St. P. Ry., 23 Wis. 186: Q. Fitzgerald v. St. P., M. & M. Ry., 29 Minn. 336, 8 Am. & Eng. R. R. Cas. 310 ; Knight v. N. Y., L. E. & W. R. R., 99 N. Y. 25. * B. C. P. Ry. v. Kemp, 61 Md. 74, 18 Am. & Eng. R. R. Cas, 220. 3 T. H. & J. Ry. v. Buck, 96 Ind. 346, 18 Am. & Eng. R. R. Cas. 234. * Jucker v. C. & N. W. R. R., 52 Wis. 150, 2 Am. & Eng. R. R. Cas. 41. 6 Delie v. C. & N. W. R. R, 51 Wis. 400. 6 Sauter v. N. Y. C. & H. R. R R. % N. Y. 50. INJURIES CAUSED BY ACT OF GOD. 29 suiting from fright caused to a pregnant female passen- ger by a collision. 1 So, in Allison v. C. & N. W. Ry., 2 it was held that a passenger who had been injured by the fault of the railway, and thereafter, while being carried by the railway as a passenger, was again injured by its fault, could recover for the second injury and for its effects, although those effects were aggravated by the prior injury. 3 On the other hand, the railway has been held not to be liable for the death of a passenger by suicide eiffht months after a collision in which he re- ceived blows on the head and spine ; 4 nor for the possi- bility of a second and future fracture of a leg by reason of the oblique character of a fracture which had been caused by the railway's negligence. 5 VI. THE LIABILITY FOE INJURIES CAUSED BY AN ACT OF GOD. A railway 13 not liable for injuries resulting from an " act of God," and without negligence on its part. 30. A railway is not liable for injuries caused by an " act of God," which, as defined by James, L. J., in Nugent v. Smith, 6 is the result of the operation of " natural causes, directly and exclusively, without human inter- vention," and which " could not have been prevented by any amount of foresight and pains and care reason- ably to be expected" of the railway. Thus in Withers v. N. K. Ry., 7 an embankment which had been stand- ing for five years, in a country subject to floods, was 1 Fitzpatriek v. G. W. Ry., 12 Up. Can. (Q. B.) 645 ; Beauchamp v. S. Min- ing Co., 50 Mich. 163 ; Barbee v. Reese, 60 Miss. 906. 2 42 Iowa 274. 1 See, also, N. C. Ry. v. The State, 29 Md. 420. « Scheffer v. W. C V. M. & G. S. R. R., 105 U. S. 249. 5 Lincoln v. S. & S. R. R., 23 Wend. 425. « 1 C. P. D. 444. '3H.&N. 969. 30 INJURIES CAUSED BY ACT OF GOD. undermined by an extraordinary flood. The train on which the plaintiff was a passenger, and which was run- ning at express speed, ran off the line at night by reason of the sinking of the embankment, and the plaintiff was injured. After a verdict for the plaintiff, a rule for a new trial was made absolute, Pollock, C. B., saying: " The company were not bound to have constructed their embankment so as to meet such extraordinary floods." In P. & R. R. R. v. Anderson, 1 the accident was like- wise caused by the fall of an embankment, but there was contradictory testimony with regard to the original construction of the embankment, engineering experts differing as to whether it had been so drained as to carry off the water. There was also proof that the train was drawn by an engine reversed, and that so running the engine at night and in a storm was negli- gence. Judgment upon a verdict for the plaintiff was affirmed in error upon the ground that upon the evi- dence thus stated the question was properly left to the jury. In B. & O. R. R. v. S. S. Independent School District, 2 the district sued to recover damages for the destruction of its school-house, which was carried away by a flood which a culvert under the railway embank- ment was not sufficiently large to pass. Judgment upon a verdict for the plaintiff was reversed in error, because the court below had instructed the jury in effect that negligence upon the part of the defendant concurring with the act of God, although that negligence did not produce the injury, and its absence would not have pre- vented it, was sufficient to render the defendant liable, Green, J., saying, "If the act of God in this particular case was of such an overwhelming and destructive char- acter as by its own force, and independently of the par- ticular negligence alleged or shown, produced the injury, 1 94 Penna. St. 351. 2 96 Tenna. St. G5. INJURIES CAUSED BY ACT OF GOD. 31 there would be no liability, although there were some negligence in the maintenance of the particular struct- ure. To create liability it must have required the com- bined effect of the act of God and the concurring neg- ligence to produce the injury." In P., F. W. & C. Ky. v. Brigham, 1 the plaintiff sued to recover for injuries caused by the fall of the roof of a station-house, which was blown down by a storm, the roof having stood for eighteen years, and the testimony being conflicting as to whether the roof had been properly constructed, and as to the usual or unusual character of the storm. Judgment upon a verdict for the plaintiff was reversed in error, be- cause the judge at the trial instructed the jury "that the defendants were bound to provide against all storms which could reasonably have been expected, and by plain im- plication that the defendants were bound to provide against all storms that were not unprecedented, or were of a kind that had ever happened within the range of human experience," whereas the liability ought to have been made to turn upon the question of whether or not the defendants had used " that degree of care which a man of ordinary prudence is accustomed to employ in constructing or maintaining a building " for such a pur- pose. The general principle, thus stated, is supported by many authorities. 2 31. Carefully constructed and operated railways are, * 29 Ohio St. 374. 2 G. W. Ry. v. Braid, 1 Moore P. C N. S. 101 ; Nichols v. Marsland, 2 Ex. D. 1 ; P., F. W. & C. Ry. v. Brigham, 29 Ohio St. 374 ; Lehigh Bridge v. L. C. & N. Co., 4 Rawle 9 ; P. & R. R. R. v. Anderson, 94 Penna. St 351 ; B. & O. R. R. v. School District, 96 Id. 65, 2 Am. & Eng. R. R. Cas. 166 ; Foster v. Juniata Bridge Co., 16 Penna St. 393 ; P., F. W. & C. Ry. v. Giileland, 56 Id. 445; Livezey v. Philadelphia, 64 Id. 100; Welker v. N. C. R. R., 1 Weekly Notes of Cases (Penna.) 210; Hayes v. Kennedy, 41 Id. 378 ; Morrison v. Davis, 20 Id. 171 ; Gould v. McKenna, 86 Id. 297 ; Nugent v. Smith, 1 C. P. D. 423 ; I. & G. N. R. R. v. Halloren, 53 Tex. 46, 3 Am. & Eng. R. R. Cas. 343 ; M. & C. R. R. v. Reeves, 10 Wall. 176 ; Gates v. S. M. R. R., 23 Minn. 110, 2 Am. & Eng R. R. Cas. 237 ; Denny v. N. Y. C. R. R., 13 Gray 481. 32 RECURRING ACT OF GOD. therefore, not to be held liable for injuries resulting from the carrying away of their embankments or bridges by sudden and extraordinary floods ; * nor from the pros- tration of their station buildings in an extraordinary gale; 2 nor when the train is blown from the track by a cyclone ; 3 nor when a train is derailed by the breaking of a rail by sudden frost. 4 Under these authorities, the duty of the railway, as to its line and buildings, is ade- quately performed if they be so constructed as to resist the ordinary and probable action of the elements ; but in K. P. Ry. v. Miller, 5 a higher measure of responsi- bility was wrongly imposed, for it was there held that the railway is liable if it fail to provide against any extraordinary floods which may in the exercise of the highest degree of care be anticipated. An extraordinary natural event does not, by occurring a second time, cease to be properly characterized as an " act of God." 32. To constitute an extraordinary natural event, in a legal sense, an " act of God," it is not necessary that such an event has never happened before, nor does such an event, by happening a second time, cease to be an " act of God ;" thus in P., F. W. & C. Ry. v. Gilleland, 6 the judge, at the trial, in his direction to the jury, having said : " Now, under these circumstances, it will be for you to determine whether the defendants ought or ought not after the first and second floods to alter their culvert 1 Withers v. N. K. Ry., 3 II. & N. 969 ; G. W. Ry. v. Braid, 1 Moore P. C. N. S. 101 ; I. & G. N. R. R v. Halloren, 53 Tex. 46, 3 Am & Eng. R. R Cas. 343 ; Gates v S. M. Ry , 28 Minn. 110, 2 Am. & Eng. R. R. Cas. 237 ; H. & T. C. Ry. v. Fowler, 56 Tex. 452, 8 Am. & Eng. R. R. Cas. 504 ; O. & R. V. Ry. v. Brown, 14 Neb. 170, 11 Am. & Eng. R. R. Cas. 501 ; Ely v. St. L., K. C & N. Ry., 77 Mo. 34, 16 Am. & Eng. R. R. Cas. 342. 2 P., F. W. & C. Ry. v. Brigham, 29 Ohio St. 374. 8 McClary v. I. C. By., 3 Neb. 44. « McPadden v. N. Y. C. R. R , 44 N. Y. 478. 5 2 Colo. 442. 6 56 Penna. St. 445. EECURKING ACT OF GOD. 33 by enlarging its cavity. Considering the frequency of these floods, was it or was it not negligent in them not to do so after the repeated instances and positive notices, coupled with the request testified to," judgment was re- versed; Agnew, J., in his opinion, said as to this in- struction : " In effect this was to leave it to the jury to find a liability for extraordinary floods, because a second and a third happened like the first, and came in rapid succession. If all were extraordinary, as the instruction concedes, the surprise at the second and third could not be less than at the first, and it was still more surprising that they should come in this rapid succession. Being extraordinary, neither second nor third could ha\e been expected more than the first. The rule as to extraordi- nary floods was therefore not changed. But the frequent recurrence of what was supposed to be extraordinary was some evidence that the real character of all these floods had been mistaken by those who testified as to their ex- traordinary character, and they were really only ordi- nary freshets, though measuring up to the highest alti- tude of that class. It was proper, therefore, to submit this question to the jury with instruction, if they so found the fact, to apply the rule as to ordinary freshets. But from the manner of submitting the instructions, doubtless the jury might understand that they were permitted to allow damages for these extraordinary floods because of their recurrence one after another in so short a time. In this there was error." Fry, J., expressed the same view in his judgment in N. P. & O. C. M. Co. v. L. & St. K. Docks Co., 1 saying : " I do not think that the mere fact that a phenomenon has hap- pened once, when it does not carry with it or import any probability of a recurrence, when, in other words, it does not imply any law from which its recurrence can 1 9 Ch. D. 515. 34 NEGLIGENCE CONCURRING WITH ACT OF GOD. be inferred — places that phenomenon out of the opera tion of the rule of law with regard to the act of God In order that the phenomenon should fall within that rule, it is not, in my opinion, necessary that it should be unique; that it should happen for the first time. It is enough that it is extraordinary, and such as could not reasonably be anticipated." Wliere negligence on the part of the railway has concurred vrith an " act of God " in causing the injury, the railway must be held liable therefor. 33. But, of course, where negligence on the part of a railway has concurred with the act of God in causing the injury, the railway will be held liable, as, for in- stance, where there has been negligence in the original construction of the line ;* or, where the railway ser- vants, being aware that a railway bridge had been car- ried away by a flood, do not take the proper steps to stop an approaching train ; 2 or, where a storm of unusual severity having carried away a properly constructed embankment, the railway ran a train without causing the roadbed and track to be carefully examined in advance of the coming of the train. 3 1 P. & R. R. R. v. Anderson, 94 Penna. St. 356 ; Davis v. C. V. R. R., 55 Vt. 84, 11 Am. & Eng. R. R. Cas. 173. 2 Lambkin v. S. E. Ry., 5 App. Cas. 352. 3 Ellet v. St. L., K. C. & N. Ry., 76 Mo. 518, 12 Am. & Eng. R. R. Cas. 183. See, also, as to the effect of negligence on the part of the railway con- curring with an "act of God" in causing the injury: Dixon v. M. Board of Works, 7 Q, B. D. 418 ; Truitt v. H. & St. J. R. R., 62 Mo. 527 ; B. & O. R. R. v. School District, 96 Penna. St. 65, 2 Am. & Eng. R. R. Cas. 166 ; Straoss v. W., St. L. & P. Ry., 17 Fed. Rep. 209. INEVITABLE ACCIDENT. 35 VTI. THE LIABILITY FOR INJURIES CAUSED BY AN ACT OF THE PUBLIC ENEMY. Railways are not liable for injuries resulting from an act of a public enemy. 34. Railways are not liable for injuries caused, with- out negligence on their part, by an act of the public enemy, as, where a railway bridge having been burned by an armed force in rebellion against the government of the United States, a train was, without negligence on the part of the railway, precipitated into the chasm. 1 VIII. THE LIABILITY FOR INJURIES CAUSED BY INEVIT- ABLE ACCIDENT. The railway is not liable for injuries caused, without negligence on its part, by inevitable accident. 35. Railways are not to be held liable for injuries resulting from inevitable accident, that is, accident not due in any way to negligence on the part of the rail- way, and such as no human foresight could avert. The distinction between an act of God and an inevitable accident is, that in the one case there is, and in the other case there is not, the presence and operation of vis major ; 2 thus, the railway was held not to be liable for the death of a boy who climbed on a moving coal car, and, having dropped his hat, fell, in the effort to re- cover it, and was killed ; 3 nor where a child having hid himself in a ditch on the line was discovered by the 1 Sawyer v. H. & St. J. R. R., 37 Mo. 240. 2 Aston v. Heaven, 2 Esp. 533; Hammack v. White, 11 C. B. N. S. 588, 103 E. C. L. ; Beach v. Parmeter, 23 Penna. St. 197 ; A. T. & S. F. R. R. v. Flinn, 24 Kans. 627, 1 Am. & Eng. R. R. Cas. 240; Hallihan v. St. J. R. R., 71 Mo. 113, 2 Am. & Eng. R. R. Cas. 117; Maschek v. St. L. R. R., 71 Mo. 276, 2 Am. & Eng. R. R. Cas. 38 ; H. M. & F. P. Ry. v. Kelley, 102 Penna. St. 115. 3 Woodbridge v. D. L. & W. R. R., 105 Penna. St. 460, 16 Weekly Notes of Cases (Penna.) 55. 36 SELF-CAUSED INJURIES. engine driver too late to stop the train j 1 nor where boys, having, without the knowledge of the train men, climbed upon a moving freight car, were thrown off by a jolt in rounding a curve. 2 Upon the same principle the railway is held not to be liable to its passengers for injuries resulting from a hidden defect in its machinery or appliances, which, by the exercise of care upon its part, would not have been discovered. TX. THE LIABILITY FOR INJURIES CAUSED SOLELY BY THE ACT OF THE INJURED PERSON. The railway is not liable for injuries caused solely by the act of the injured person. 36. Railways are not liable for injuries solely caused by the act of the injured party, without negligence on the part of the railway ; thus, in Caswell v. Worth, 3 the plaintiff, a servant, having declared upon a breach by his master, the defendant, of a statutory duty to fence certain dangerous machinery, the defendant pleaded specially that the plaintiff wilfully and know- ingly, and contrary to the express commands of the defendant, set the machinery in motion, and, on de- murrer, judgment was entered for the defendant. 4 So, where a railway, in obedience to a statute, had erected gates at a crossing but did not have any person in at- tendance to open and close them, and the plaintiff at night had opened the gates himself, and while he was driving through, the gates in swinging struck and frightened the plaintiff's horse, whereby the plaintiff was thrown out and injured, it was held that the railway 1 Meyer v. M. P. R. R., 2 Neb. 320. 2 State, etc., v. B. & O. R. R., 24 Md. 84. 8 5 El. & Bl. 849, 85 E. C. L. * See, also, the cases put by Coleridge, J., in summing up in Woolf v. Beard, 8 C. & P. 373, 34 E. C. L. ACTS AND OMISSIONS OF SERVANTS, ETC. 37 was not liable. 1 Nor ought the motive, however praise- worthy, which induces the person injured to do the act which is demonstrably the sole cause of his injury, render the railway liable for that injury ; thus, in E. & C. E. K. v. Hiatt, 2 it was held that a son, who in order to save his father's life, stepped upon the line in front of a moving train and was injured, could not recover from the railway. A contrary conclusion was reached in Eckert v. L. I. Ky., 3 where the plaintiff's decedent, standing near a railway line and seeing a child between the rails before a rapidly approaching train, rushed upon the line and threw the child off at the cost of his own life, and judgment upon a verdict for the plaintiff was affirmed in error by a divided court, Allen and Folger, JJ., dissenting. It is obvious that, in each of these cases, the question at issue was as to negligence on the part of the railway, and not as to contributory negligence on the part of the person in- jured, and that in neither case did the railway owe any duty to the person injured, and, for that reason, it could not be negligent as to him. The Indiana case was, there- fore, rightly, and the New York case wrongly, decided. X. THE LIABILITY FOE, OMISSIONS AND ACTS OF COM- MISSION BY AGENTS AND SERVANTS. The railway is liable for an omission to perform its duty, by whomso- ever that performance is omitted, and for negligent acts of commission, if the negligent act be done by Us agent or servant. 37. Upon the principle stated by Blackburn, J., 4 where the injury is done by the omission of a particular act of care, which the duty of the railway to the person injured required it to do for his protection, the fact of 1 Wyatt v. G. W. lly., 6 B. & S. 709, 118 E. C. L. » 17 [nd. 102. 3 43 N. Y. 502. * The Mersey Docks Trustees i. Gibbs, L R. 1 H. L. 115. OO ACTS OF OTHERS THAN SERVANTS. the omission fixes the liability of the railway, and the relation between the railway and the person who has omitted to perform the particular duty is immaterial, but where the injury is the result of misfeasance, the liability of the railway is necessarily dependent not only upon the character of the act done, but also upon the relation of express or implied agency between the railway and the wrongdoer, for, as Rolfe, B., said, 1 " the liability of any one other than the party actually guilty of a wrongful act proceeds on the maxim qui facit per alium facit per se." XI. THE LIABILITY FOR THE NEGLIGENT ACTS OF THOSE WHO ARE NOT AGENTS OR SERVANTS. Railways are not liable for the negligent acts of persons who are not agents nor servants of the railway. 38. Kail ways are not to be held liable for injuries caused solely by the acts of persons who do not hold to the railway any relation of express or implied agency, as, for instance, where the injury results from the act of a stranger in placing obstruction on the line ; 2 or, in turning a switch so as to derail a train ; 3 or, in putting on the track a fog signal, which, being exploded by the train, injured a passenger. 4 Nor is the railway liable where injury to a passenger results from the falling upon a railway carriage of a bridge girder, which was being placed in position by a contractor engaged by another corporation, the railway having no reason to anticipate negligence on the part of the contractor; 5 1 Reedie v. L. & N. W. Ry., 4 Ex. 243. 2 Curtis v. R. & S. R. R., 18 N. Y. 534 ; Harris v. U. P. R. R., 13 Fed. Rep. 591, 4 MeCrary 454. 3 Latch v. R. Ry., 27 L. J. Exeh. 155, 3 H. & N. 930 (American edition) ; Keeley v. E. Ry., 47 How. Pr. 25G. * Jones v. g" T. Ry., 45 Up. Can. (Q. B.) 193. 5 Daniel v. M. Ry.", L. R. 3 C. P. 216, 591, 5 H. L. 45. CONCURRING NEGLIGENCE OF THIRD PARTIES. 39 nor, for injuries resulting from negligence upon the part of another railway in the exercise of statutory running powers over the defendant's line; 1 nor, for injuries caused to a passenger by a mob of disorderly intruders who forced their way into the train and assaulted the passenger ; 2 nor, in general, for the acts or omissions of independent contractors employed by the railway. Negligence on the part of the railway is not excused by the concurrence of the negligence of a third party unconnected with either the railway or the injured person. 39. Where the plaintiff's injury can be traced to negligence on the part of the railway as its primary and proximate cause, the concurrence of the negligence of a person unconnected with either the railway or the person injured will not relieve the railway from respon- sibility for the consequences of its negligence. This general doctrine is asserted in many cases. 3 One of the latest illustrations of this doctrine is to be found in the case of Smith v. N. Y. S. & "W. R. R., 4 where a railway was held liable for injuries caused by collision resulting from the movement of certain cars which had been neg- ligently left on a siding in such a situation that a 1 Taylor v. G. N. Ry., L. R. 1 C. P. 385 ; Wright v. M. Ry., L. R. 8 Ex. 137. 2 P., F. W. & C. Ry. v. Hinds, 53 Penna. St. 512. 3 Scott v. Shepherd, 3 Wils. 403, 2 W. BL 892, 2 Sm. Lead. Cas. 797 ; Dixon v. Bell, 5 M. & S. 198 ; Illidge v. Goodwin, 5 C. & P. 190, 24 E. C. L. , Lynch v. Nurdin, 1 Q. B. 29, 41 E. C. L. ; Daniels v. Potter, 4 C. & P. 262, 19 E. C. L. ; Hughes v. Macfie, Abbott v. Macfie, 2 H. & C. 744 ; Bird v. Hol- brook, 4 Bing. 628, 15 E. C. L.; Hill v. N. R. Co., 9 B. & S. 303; Collins v. M. L. Comrars., L. R. 4 C P. 279; Harrison v. G. N. Ry., 3 H. & C 231; Sneesby v. L. & Y. Ry., 1 Q. B. D. 42 ; Clark r. Chambers, 3 Q. B. D. 327, dis- approving Mangan v. Atterton, L. R. 1 Ex. 239; Smith v. L. & S. W. Ry., L. R. 5 C. P. 98 ; Pittsburgh v. Grier, 22 Penna. St. 54; Scott v. Hunter, 46 Id. 192; P. R. R. v. Hope, 80 Id. 373 ; O. C. Gas Co. v. Robinson, 99 Id. 1 ; Hey v. Philadelphia, 2 Weekly Notes of Cases (Penna.) 466 ; Raydure v. Knight, Id. 713 ; Fawcett v. P. C. & St. L. Ry., 24 W. Va. 755, 19 Am. & Eng. R. R. Cas. 1. 4 46 N. J. L. 7, 18 Am. & Eng. R. R. Cas. 399. 40 NON-PERFORMANCE OF STATUTORY DUTY. wrongdoer could readily throw them on to the main line. 1 Nicholson v. E. R. R., 2 which apparently con- tradicts the last-cited case, is, perhaps, distinguish- able in that the person, whose injuries were the subject of the action in that case, was a mere licensee. XII. THE NON-PERFORMANCE OF A DUTY IMPOSED BY STATUTES OR MUNICIPAL ORDINANCES. Where the railway fails to perform a duty imposed by a statute, the railway is, by reason of such failure, liable for any injuries directly resulting therefrom, if the statide vests in the person injured a right of action for such non-performance of duty ; but where the injuries do not directly result from such non-performance of duty, or whei'e the statute does not, in terms, vest in tlie person injured a right of action, the railway is not to be held liable solely by reason of such non-performance. 40. The Stat. Westm. 2, 13 Edw. I, c. 50, gives an action on the case to any one aggrieved by the neglect of a statutory duty, 3 but it does not necessarily follow that that which gives the right to sue is conclusive evi- dence of the fact upon which the right to recover must be based. In Couch v. Steel, 4 a ship owner having neglected a statutory duty of keeping on board his ship a proper supply of medicines, it was held that a sailor 1 See, also, L. & N. R. R. v. McKenna, 13 Lea (Term.) 280, 18 Am. & Eng. R. R. Cas. 276 ; Brown v. P. R. R., 8 Rob. (La.) 45. 5 41 N. Y. 525. 3 Comyn's Dig. Action on Stat. F. ; Rowning v. Goodchild, 2 W. Bl. 906. *3£.&B. 402, 77 E. C. L. Note. — All sidings on which cars are stored should be guarded, not only by the locking of the switch connecting with the main line, but also by the locking open of one rail, so as to divert from the main line a car if improperly moved on the siding. In the case of a double tracked line each siding should be so connected with a main line track that cars, in leaving the siding, should proceed in the same direction in which trains proceed on the main line track with which the siding is connected, and all siding switches should be safety switches, preserving the main line unbroken, equipped with targets by day and with lights by night, so arranged as to show automatically when tie switch is open. NON-PERFORMANCE OF STATUTORY DUTY. 41 whose health had been injured for want of such medi- cines could maintain his action. In Blamires v. L. & Y. By., 1 it was held that non-compliance with a statutory requirement of maintaining means of communication between passengers and guards, is, where injury has resulted to a passenger from the*want of such means of communication, evidence of negligence. So in Britton v. G. W. Cotton Co., 2 where the plaintiff, an employe, had been injured from the defendant's neglect of the statutory duty of fencing a fly wheel well, it was held that the plaintiff was entitled to recover. So also in Stapley v. L. B. & S. C. By., 3 the same rule was applied where the defendant had neglected its statutory duty of maintaining a servant in charge of the gates across a public carriage-way. In Williams v. G. W. By., 4 where the defendant's line crossed a public footpath, on the level, and the defendant had failed to perform its statu- tory duty of erecting gates, and the plaintiff was found upon the crossing with his foot severed, the defendant's non-fulfilment of its statutory obligation was held to be sufficient evidence of negligence to justify a verdict for the plaintiff. In Hayes v. M. C. B. B., 5 a municipality having under statutory authority made regulations for the fencing of railways within its limits, and the de- fendant having failed to comply with the regulations, and a boy having been injured for want of such fence, it was held that the defendant's neglect of its statutory duty was evidence of negligence. The same doctrine is asserted in Nitro-Bhosphate Co. v. L. S. & St. K. Co., 6 where the plaintiff's loss was directly traceable to the defendant's failure to comply with the statutory regula- tion imposed by its charter with regard to the height 1 L. R. 8 Ex. 283. J L. R. 7 Ex. 130. 3 L. R. 1 Ex. 21. « L. R. 9 Ex. 157. 5 111U. S. 228. • L. R. 9 Ch. D. 503. 42 DISOBEDIENCE TO MUNICIPAL ORDINANCES. of its wall. On the other hand, in Atkinson v. N. & G. Water Works Co., 1 where by statute the defendant was ret pi i red to maintain lire-plugs with a sufficient supply of water, and plaintiff, whose property had been burned through defendant's default in not supplying a sufficient supply of water, brought his action against thern, it was held on demurrer, by the Exchequer of Pleas, that the narr was good, but in the Court of Appeals this was re- versed, upon the ground that the liability to private action for neglect of a statutory duty depends " on the purview of the legislature in the particular statute and the language which they have employed." 2 The rule deducible from the cases seems to be that which is stated in the heading of this section. A non-performance of a duty imposed by a municipal ordinance does not per se constitide a ground of liability. 41. It is held in some cases that disobedience to a municipal ordinance is not a ground of liability. 3 The contrary doctrine is asserted in other cases. 4 It is held in other cases that the failure of a railway to perform a duty imposed by a municipal ordinance may be con- sidered not as negligence, but merely as evidence of negligence. 5 1 L. R. 6 Ex. 404, 2 Ex. D. 441. 2 See also Gorris v. Scott, L. R. 9 Exch. 125; Fitzgerald v. St. P., M. & M. Ry., 29 Minn. 3.!6, 8 Am. & Eng. R. R. Cas. 310; Brown v. B. & S. L. R. R. 22 N.Y. 191 ; Thayer v. St. L., A. & T. H. R. R., 22 Ind. 26. 3 P. & R. R. R. v. Ervin, 89 Penna. St. 71 ; P. & R. R. R. v. Boyer, 97 Id. 91 ; Ileeney v. Sprague, 11 R. I. 456; Knupfle v. K. I. Co., 84 N.Y. 491. * Salisbury v. Ilerchenrodcr, 106 Mass. 458 ; Owings v. Jones, 9 Md. 117; B. C. P. R. R. v. McDonnell, 43 Id. 552 ; Bott v. Pratt, 33 Minn. 323, 8 Am. f the particular case, to have been exercised by the Jijured infant, but, of course, this doctrine cannot rea- sonably be applied in the cases of those who are infants only in legal theory, as, for instance, those who are be- tween fourteen and twenty-one years of age. In Nagle v. A. V. R. R., 2 where there was affirmed in error a judgment of nonsuit upon the ground of the contrib- utory negligence of the plaintiff, a boy of between four- teen and fifteen years of age, Paxson, J., in a carefully reasoned judgment says : " the law fixes no arbitrary period when the immunity of childhood ceases and the responsibilities of life begin. For some purposes ma- jority is the rule. It is not so here. It would be irrational to hold that a man was responsible for his negligence at twenty-one years of age, and not re- sponsible a day or a week prior thereto. At what age 1 See also Johnson v. C. & N. W. Ey., 49 Wise. 529, 1 Am. & Eng. E. E. Cas. 155 ; Ewen v. C. & N. W. Ey., 38 Wise. 614 ; Townley v. C. M. & St. P. Ey., 53 Wise. 626, 4 Am. & Eng. E. E. Cas. 562 ; Evansich v. G. C. & S. F. E. E., 57 Tex. 123, 6 Am. & Eng. E. E. Cas. 182, Vickers v. A. & W. P. E. E., 64 Ga. 306, 8 Am. & Eng. E. E. Cas. 337 ; M. & M. Ry. v. Crenshaw, 65 Ala. 666, 8 Am. & Eng. E. B. Cas. 340 ; Johnson v. C. & N. W. Ey., 56 Wise. 274, 8 Arm & Eng. E. E. Cas. 471 ; Nagel v. M. P. Ey., 75 Mo. 653, 10 Am. & Eng. E. E. Cas. 702; P. & M. E. E. v. Hoehl, 12 Bush (Ky.) 41 ; Eeynolds v. N. Y. C. & H. E. E. E., 58 N. Y. 248 ; Ihl v. F. S. St. E. E., 47 N. Y. 317 ; Mulligan v. Curtis, 100 Mass. 512; O'Connor v. B. & L. E. E., 135 Mass. 352, 15 Am. & Eng. E. E. Cas. 362. 2 88 Penna. St. 35. CONTRIBUTORY NEGLIGENCE OF INFANTS. 71 then must an infant's responsibility for negligence be presumed to commence ? This question cannot be an- swered by referring it to the jury. That would furnish us with no rule whatever. It would give us a mere shifting standard, affected by the sympathies or preju- dices of the jury in each particular case. One jury would fix the period of responsibility at fourteen, another at twenty or twenty-one. This is not a ques- tion of fact for the jury. It is question of law for the court. Nor is its solution difficult. The rights, duties, and responsibilities of infants are clearly defined by the text writers as well as by numerous decisions. We have seen that the law presumes that at fourteen years of asre an infant has sufficient discretion and under- O standing to select a guardian and contract a marriage, is capable of harboring malice and of taking human life under circumstances that constitute the offence murder. It, therefore, requires no strain to hold that at fourteen an infant is presumed to have sufficient capacity and understanding to be sensible of danger, and to have the power to avoid it. And this presump- tion ought to stand until it is overthrown by clear proof of the absence of such discretion and intelligence as is usual with infants of fourteen years of age." 1 1 In Colgan v. W. P. P. Ry., 4 Weekly Notes of Cases (Penna.) 400, Biddle, J., applied the same rule in the case of a boy sixteen years of age. See also Dietrich v. B. & H. S. Ry., 58 Md. 347, 11 Am. & Eng. R. R. Cas. 115, where the injured boy was fifteen years of age ; but in Haycroft v. L. S. & M. S. Ry., 04 X. Y. 636, where the injured infant was a girl, who was nearly seventeen years of age, and whose injury was clearly due to her own carelessness, it was held that the degree of care to be exercised by her was not as high as that which was properly demandabie of an older person, and that it was for the jury to determine whether or not she was contributorily negligent. 72 CONTRIBUTORY NEGLIGENCE OF INFANTS. A railway owes to an infant, or to an adult of known mental or physx- cal incapacity, a higher measure of duty than that which it owes to an adidt of average mental and physical capacity. 74. Of course, a railway owes to an infant, or to a per- son of known inferior mental or physical capacity, a higher measure of duty than that which it owes to adults of average mental and physical capacity : thus in Smith v. O'Connor, 1 where the plaintiff, seven years of age, sued to recover damages from the defendant for his having negligently driven a horse and wagon over her at a public crossing, judgment on a verdict for the plain- tiff was affirmed in error, Strong, J., saying, "undoubt- edly the age and capacity of the person injured may have something to do with the question, whether a de- fendant was guilty of negligence, for every one has a right to act upon the supposition that adult persons will take ordinary care to avoid danger, while such a pre- sumption is unwarranted resj>ecting the conduct of those who have not yet reached years of discretion. Hence a higher degree of care and greater precaution are justly demanded to avoid injury to the latter." Thy same rule is applied where the railway servants know that an adult is incapacitated by deafness, 2 and in such a case they are bound to exercise for his protection a greater degree of care than they would be required to exercise if they did not know of his incapacity. TJie fact of the infancy, or other incapacity, of the injured person will not supply the want of proof of negligence on the part of the railway. 75. The fact of the infancy of the injured party will not supply want of proof of negligence upon iiie part of the railway ; thus, in A. T. & S. F. Ey. t\ Flinn, 3 the 1 48 Penna. St. 218. * I. & G. N. Ry. v. Smith, 62 Tex. 252, 19 Am. & Eng. fi. R. Oas. 21. 8 24 Kans. 627, 1 Am. & Eng. R. R. Cas. 240. CONTKIBUTORY NEGLIGENCE OF INFANTS. 73 plaintiff, a girl of five years of age, having, with another girl of the same age, been put by a relative on the rail- way's train to proceed to a way station, and the servants in charge of the train supposing them to be under the charge of a passenger not having collected any fare from them nor inquired as to their destination, and the train having arrived and after waiting a reasonable time for passengers to alight, had gotten under way, when the plaintiff in attempting to alight was injured, it was held that the railway was not liable. So in C. B. & Q. R. R. v. Stumps, 1 the railway was held not to be liable to a boy of seven years of age, who was injured while endeavor- ing to climb on one of the cars of a freight train, which was moving on the railway line which had been con- structed on a public highway in a town, the proof show- ing that the train was moving slowly under proper con- trol, and that it was adequately manned. So in McMahon v. N. C. Ry., 2 the railway was held not to be liable to a boy less than six years of age, who was in- jured while attempting to crawl unbler a car in motion. So in Ostertag v. P. R. R., 3 the railway was held not to be liable for the death of a boy, who, having taken his seat beneath a freight car on a trestle was killed by a sudden starting of the train. So in C. B. U. P. R. R. v. Henigh, 4 the railroad was held not to be liable for the death of a boy who climbed on a car on a siding, loosened its brakes, and fell off or jumped off in front of the car as it was moving by force of gravity on a down grade. So in Wendell v. N. Y. C. & H. R. R. R., 5 where a father sued for the death of a son seven years of age, who, being accustomed to go to school and about the streets without an attendant, was run over and killed at a level crossing of a highway in the city of Schenec- 1 69 Til. 409. 2 39 Md. 438. 3 04 Mo. 421. * 23 Kans. 347. 6 91 N. Y. 420. 74 INTOXICATION AS CONTRIBUTORY NEGLIGENCE. tady, while attempting to run across the line in plain view of an approaching train, it was held that the plain- tiff should have been nonsuited, because the uncontra- dicted testimony produced on his behalf showed no negligence. So in Moore v. P. E. R., 1 a similar ruling was made in the case of a boy ten years of age who was killed while trespassing on a railway line. In Sherman v. H. & St. J. R. R., 2 Hough, J., quotes with approval the remark of Agnew, J., in Flower v. P. R. R., 3 that the youth of the person injured "may excuse him from concurring negligence, but it cannot supply the place of negligence on the part of the com- pany. The fact of the intoxication of the injured person at the time of the in- jury will not only not relieve him from the legal consequences of his contributory negligence, but also, if his intoxicated state contributed to the happening of the injury, will be admissible in evidence as proof of contributory negligence. 76. The fact that the person injured was intoxicated at the time of the injury, will not relieve him from the legal consequences of his contributory negligence. 5 Proof of the intoxication of the person injured at the time of the injury, is admissible in evidence for the defendant, if the intoxicated state of the person injured 1 11 Weekly Notes of Cases (Penna.) 310, 4 Am. & Eng. R. R. Cas. 569. 2 72 Mo. 62, 4 Am. & Eng. R. R. Cas. 589. 3 69 Penna. St. 210. * See also Snyder v. H. & St. J. R. R., 60 Mo. 413 ; P. & R. R. R. v. Heil, 5 Weekly Notes of Cases 91 ; II. M. & F. P. Ry. v. Kelley, 102 Penna. St. 115; Flanders v. Meath, 27 Ga. 358 ; Roller v. S. S. R. R., Cal. , 19 Am. & Eng. R. R. Cas. 333 ; Ilogan v. C. M. & St. P. Ry., 59 Wise. 139, 15 Am. & Eng. R. R. Cas. 439 ; Maschek v. St. L. R. R., 71 Mo. 276, 2 Am. & Eng. R. R. Cas. 38; C. & A. R. R. v. Becker, 76 111. 25. 5 Kean v. B. & O. R, R., 61 Md. 154, 19 Am. & Eng. R. R. Cas. 321 ; T. P. & W. R. R. i\ Riley, 47 111. 514 ; C, R. I. & P. R. K. v. Bell, 70 Id. 102; I. C. R. R. v. Hutchinson, 47 Id. 408 ; Weeks v. N. O. & C. R. R., 32 La. An. 615 Milliman v. N. Y. C. & H. R. R. R., 66 N. Y. 642. KNOWLEDGE OF THE INJURED PERSON'S INCAPACITY. 75 contributed to the happening of the injury. 1 Evidence is admissible to show that the plaintiff was an habitual drunkard, as bearing on the question of the compensa- tory damages to which he may be entitled. 2 An incapacity on the part of the injured person will not render the railway liable to him under circumstances in which it would not be liable to a person of average capacity, unless that incapacity be known to the railway servants. 77. It has been stated that knowledge on the part of the railway of the injured person's incapacity, imposes upon the railway a higher measure of duty with re- gard to that person, but it is, nevertheless, clear, that the incapacity of the injured person, if not known to the railway servants, will not render the railway liable under circumstances in which it would not be liable to persons who are not so incapacitated. This rule has been applied in cases of deaf persons. 3 78. It is also to be said that the incapacity of the person injured imposes on him the duty of exercising, for his own protection, that degree of care for his own safety that will, as far as possible, compensate for his impaired sense of hearing, or of sight, or other disa- bility. 1 1 Herring v. W. & R. R. R., 10 Ired. 402 ; I. C. R. R. v. Hutchinson, 47 111. 408 ; Weeks v. N. O. & C. R. R., 32 La. An. 615 ; Davis v. O. & C. R. R., 8 Oreg. 172; S. W. R. R. v. Hankerson, 61 Ga. 114; H. & T. C. Ry. v. Waller, 56 Tex. 331, 8 Am. & Eng. R. R. Cas. 431. 2 C. & P. R. R. v. Sutherland, 19 Ohio St. 151. 3 C, C. & C. R. R. v. Terry, 8 Ohio St. 570 ; Poole v. N. C. R. R., 8 Jones (N. C.) 340; I. C. R. R. v. Buckner, 2S 111. 299 ; Johnson v. L. & N. R. R., Ky. , 13 Am. & Eng. R. R. Cas. 623. 4 Johnson v. L. & N. R. R., Ky. , 13 Am. & Eng. R. R. Cas. 623; C, C. & C. R. R. v. Terry, 8 Ohio St. 570 ; Zimmerman v. H. & St. J. R. R., 71 Mo. 476, 2 Am. & Eng. R. R. Cas. 191 ; Purl v. St. L., K. C. & N. Ry., 73 Mo. 168, 6 Am. & Eng. R. R. Cas. 27 ; C. & N. W. Ry. v. Miller, 46 Mich. 532, 6 Am. & Eng. R. R. Cas. 89 ; Laicher v. N. O., J. & S. R. R., 28 La. An. 320 ; Cogswell v. O. & C. R. R., 6 Oregon 417. 76 the plaintiff's contributory negligence. viii. the plaintiff's own contributory negli- gence when suing for injuries to the person of another. Tlie plaintiff's own contributory negligence ivill bar his recovery when he sues for damage to himself resulting from the personal injuries of some one else. 79. The plaintiff's own contributory negligence will bar his recovery, not only when he sues for his personal injuries, but also when he sues for the loss caused to him by personal injuries done to some one else, as when a husband, master, or parent sues for the loss of the services of an injured wife, servant, or child. 1 Thus, it has been held to be contributory negligence in a parent to knowingly allow an infant of less than four years of age to go at large in a city street without a protector ; 2 or, a boy to serve the drivers of horse cars with water ; 3 or, a boy to ride upon the lead horse of a team at a railway crossing, the teamster retaining no control over that horse ; 4 or a boy to serve laborers on a construction train with water; 5 or children to play upon a railway line. 6 80. On the other hand, it has been held not to be necessarily contributory negligence in parents to per- mit a child of eighteen months of age to play in close 1 Glassey v. F. & P. Ry., 57 Penna. St. 172; Smith v. H. M. & F. Ry., 92 Id. 450 ; Cauley v. P. C. & St. L. Ry., 95 Id. 398 ; P. R. R. v. Bock, 93 Id. 427 ; Roller v. S. S. R. R., Cal. , 19 Am. & Eng. R. R. Cas. 333 ; B. & I. R. R. v. Snyder, 24 Ohio St. 670 ; P., F. W. & C. R. R. v. Vining, 27 Ind. 513. 2 Glassey i>.F. & P. Ry., 57 Penna. St. 172. 3 Smith v. H. M. & F. Ry., 92 Penna. St. 450. 4 P. R. R. v. Bock, 93 Penna. St. 427. 6 O. & M. Ry. v. Hammersley, 2S Ind. 371. 6 Williams v. T. & P. Ry., GO Tex. 205, 15 Am. & Eng. R. R. Cas. 403 ; E. & C. R. R. v. Wolf, 59 Ind. 89 ; J. M. & I. R. R. v. Bowen, 49 Ind. 154 ; Albert- son v. K. & D. M. R. R., 48 Iowa 292 ; Ewen v. C. & N. W. Ry., 38 Wise. 613 ; Hauley v. P. C. & St. L. Ry., 95 Penna. St. 398, 98 Id. 498. NEGLIGENCE OF POOR PARENTS. 77 proximity to a railway line, under the guardianship of another child eight years of age j 1 or to send a boy nine years of age upon an errand which required him to walk upon a railway line ; 2 or, to leave a child of tender years under the care of a boy thirteen years of age ; 3 or, under the care of a girl of eight years of age. 4 81. It has been held that poor parents of infant children are not contributorily negligent if they do not prevent their infant children from straying into the public streets, or upon the lines of railways. 5 The judg- ments in those cases seem to have been largely influenced by the sentimental reflections of the judges upon the poverty of the plaintiffs, and their consequent inability to employ servants to watch their children, and the hard- ship of requiring them to keep those children within doors when they could not go safely abroad ; but those learned judges failed to give clue weight to the consid- eration that the railway was not responsible for the acts of the parents in bringing the children into the world, nor for that degree of misfortune which retained those parents in a condition of more or less want, and that there is no rule of law, nor principle of justice, which compels railways to insure the public against the neces- sary incidents of poverty, nor which entitles people, either poor or rich, to make, at the expense of railways, profitable speculations out of the deaths of the children whom their own neglect of parental duty has exposed 1 P. A. & M. Ry. v. Pearson, 72 Penna. St. 169. ' P. R. R. v. Lewis, 79 Penna. St. 33. 8 Dahl v. M. C. Ry., 62 Wise. 652, 19 Am. & Eng. R. R. Cas. 121. 4 C. & A. R. R. v. Gregory, 58 111. 226. 5 P. A. & M. Ry. v. Pearson, 72 Penna. St. 169 ; P. & R. R. R. o. Long, 75 Id. 257; Penna. Co. v. James, 81 J Id. 194; P. R. R. v. Lewis, 79 Id. 33; Hoppe v. C. M. & St. P. Ry., 61 Wise. 357, 19 Am. & Eng. R. R. Cas. 74; Isabel v. II. & St. J. R. R., 60 Mo. 475 ; Walters v. C, R. I. & P. R. R., 41 Iowa 71 ; O' Flaherty v. U. R. R., 45 Mo. 70 ; Frick v. St. L., K. C. & N. R. R., 75 Mo. 542, 10 Am. & Eng. R. R. Cas. 776. 78 ATTRIBUTION OF THE CAEELEE's NEGLIGENCE. to peril. The cases of Pearson, Long, Lewis, ana James are open to criticism in other respects. In Pearson's case the jury were permitted to find that a girl of eight years of age was a competent nurse for an infant per- mitted to play in proximity to a railway track, yet such a finding is clearly contrary to reason. In Long's. Lewis's, and James's cases, the injured infants were tres- passers, and the defendant's owed no duty to them, and, a fortiori, none to the parents who took no care to prevent their children straying into danger. Judge Redfield, with his usual clearness, expresses sound views on this subject. 1 IX. THE ATTEIBUTION OF THE CAEEIEE's NEGLIGENCE TO THE PASSENGEE. Where a passenger sues for injuries done by other than that passen- ger's carrier, negligence upon the part of that carrier is, in some jurisdictions, attributed to the passenger as contributory negligence upon his part, but, in other jurisdictions, this attribution of contribu- tory negligence is not recognized. 82. The reason of the rule is, not that the servant of the passenger's carrier, who, by his negligence, has con- tributed to the accident, is pro hac vice the servant of the passenger, but that the carrier is so far the agent of the passenger that his negligence is the passenger's negligence, or, in other words, that the passenger, hav- ing entrusted his person to the carrier, and having been injured by the negligence of that carrier, combined with the negligence of a third party who was not under any contractual duty to him, cannot be permitted to recover from that third party for an injury which would not have happened if it had not been for negli- gence on the part of that carrier co-operating in bring- 1 2 Eedf. Ry. Cas. 501. ATTRIBUTION OF THE CARRIER'S NEGLIGENCE. 79 ing the passenger into a position of danger. This rule of law is tacitly assumed, though not expressly stated, in Bridge v. G. J. By., 1 for there the contributory neg- ligence which was considered, was not the plaintiff's 1 own negligence, but that of his carrier. In Thorogood v. Bryan, 2 the plaintiff sued to recover, under Lord Campbell's Act, for the death of her husband, who was negligently killed by the defendant's servant driving an omnibus, the decedent having been a passenger on an- other omnibus whose driver was negligent in not draw- ing up at the curb, and in permitting the decedent to alight on the street from his omnibus while in motion. At the trial Williams, J., directed the jury that " if they were of opinion that want of care on the part of the driver of his omnibus in not drawing up to the curb to put the deceased down, or any want of care on the part of the deceased himself, had been conducive to the injury, their verdict must be for the defendant." The jury having found for the defendant, a rule for a new trial was discharged, Maule, J., saying, "if the deceased himself had been driving the case would have been free from doubt. So there could have been no doubt had the driver been employed to drive him and no one else. On the part of the plaintiff, it is sug- gested that a passenger in a public conveyance has no control over the driver. But I think that cannot with propriety be said. He selects the conveyance. He enters into a contract with the owner, whom, by his servant, he employs to drive him. If he is dissat- isfied with the mode of conveyance, he is not obliged to avail himself of it. According to the terms of the contract he unquestionably has a remedy for any neg- ligence on the part of the person with whom he con- tracts for the journey. * * * If there is negligence on 1 3 M. & W. 244. • 8 C. B. 115, 65 E. C. L. SO ATTRIBUTION OF THE CARRIER^ NEGLIGENCE. the part of those who have contracted to carry the pas- sengers, those who are injured have a clear and un- doubted remedy against them. But it seems strange to say, that, although the defendant could not, under the circumstances, be liable to the owner of the other om- nibus for any damage done to his carriage, he still would be responsible for an injury to a passenger. The passenger is not without remedy. But, as regards the present defendant, he is not altogether without fault. He chose his own conveyance, and must take the con- sequences of any default of the driver whom he saw fit to trust." 83. In Catlin-y. Hills, 1 the plaintiff, having been a pas- senger on the steamboat "Sons of the Thames," with which the defendant's boat "Sapphire" had collided, and having been injured by reason of the anchor of the Sons of the Thames having become dislodged in the collision and falling upon him, brought his action against the owners of the Sapphire. Cresswell, J., directed the jury that the plaintiff was not entitled to recover if they were of opinion that there had been negligence on the part of those entrusted with the conduct and manage- ment of the Sons of the Thames, but that they must dis- miss from their minds all that had been said about the stowing of the anchor, for the plaintiff would be en- titled to a verdict even though they should think that the anchor had been improperly left unfastened. The jury having found for the plaintiff, a rule for a new trial upon the ground of misdirection was argued, but before judgment was rendered the case was settled, it being stated in a note to the report that it was under- stood that the court would have discharged the rule. In Armstrong v. L. & Y. By., 2 the L. & N. W. By. had statutory running powers over the defendant's line, 1 8 C. B. 123, 65 E. C. L. ■ L. E. 10 Ex. 47. ATTRIBUTION OF THE CARRIER'S NEGLIGENCE. 81 and the plaintiff, an officer of the L. & N. W. company, was travelling on their pass and in their train over the defendant's line, and was injured by an accident caused by the concurring negligence of the two companies. It was held that the plaintiff was so far identified with the L & N. W. By., not by his official position, but by reason of his being a passenger on its train, that he could not recover for negligence to which they had contributed. In Child v. Hearn, 1 the plaintiff, a plate layer in the service of the G. E. By., was moving on their line in a hand car when the defendant's pigs, having run through a fence which the railway had, under statutory obli- gations, constructed, and which was insufficiently con- structed, upset the hand car and injured the plaintiff. It was held that the plaintiff hj using the company's line for their purposes was identified with their negli- gence and could not recover from the defendant. 2 In Pennsylvania the doctrine seems to have been adopted to its full extent. In Simpson v. Hand, 3 the plaintiffs, owners of goods shipped on the steamer Thorn, which was run into by the steamer William Henry and the goods destroyed, brought an action against the owners of the William Henry, who defended upon the ground that the collision was contributed to by the negligence of the master and crew of the Thorn. It was held that the neglisrence of the carrier's crew was attributable to the plaintiffs, and that they could not recover. In Lockhart v. Lichtenthaler, 4 the plaintiff, a widow, sued to recover for the death of her husband, a brakeman upon coal cars which were run over the A. V. B. B. by locomotives of the company, the decedent having been 1 L. R. 9 Ex. 176. * See also Lord Blackburn's judgment in Spaight t;. Tedcastle, 6 App. Cas. 217, and "The Bernina," 11 P. D. 31. 3 6 Wharton 311. * 46 Penna. St. 151. 6 82 ATTRIBUTION OF THE CARRIER^ NEGLIGENCE. killed by a collision with some empty oil cars which the defendant had negligently placed near the railroad track, negligence upon the part of the A. V. R. R. hav- ing contributed to the accident. At the trial the judge instructed the jury to disregard the contributory negli- gence of the railroad, but judgment upon a verdict for the plaintiff was reversed in error, the Supreme Court holding that the contributory negligence of the carrier must be imputed to the decedent. In P. & R. R. R. v. Boyer, 1 the plaintiff sued to recover for the death of her husband, a passenger in a car of a street railway, who was killed in a collision of his car with the defendant's train. Judgment upon a verdict for the plaintiff was reversed in error because the judge at the trial took away from the jury the question of the contributory negligence upon the part of the driver of the street car. 84. There are, however, some English cases which do not, at first sight, seem to be reconcilable with the preceding cases. In Rigby v. Hewitt, 2 the plaintiff, having been a joassenger in an omnibus, brought suit against the owners of another omnibus which, while both omnibuses were driving at great speed, collided with the omnibus in which the plaintiff was a passenger and threw him out. Rolfe, B., directed the jury that the plaintiff was not disentitled to recover merely because the omnibus in which he sat was driving at a furious rate of speed, and that if the jury thought the collision took place from the negligence of the driver of defend- ant's omnibus and that plaintiff's omnibus was not in fault, in not endeavoring to avoid the accident, then the defendant was liable. The jury having found for the plaintiff a new trial was moved for upon the ground of misdirection, but the rule was refused. In Greenland v. Chaplin, 3 the facts were curiously identical with those 1 97 Penna. St. 91. 2 5 Ex. 240. 3 5 Ex. 243. ATTRIBUTION OF THE CARRIER'S NEGLIGENCE. 83 in Catlin v. Hills. Pollock, C. B., directed the jury that if they were of the opinion that the collision was owing to bad navigation of the defendant's steamboat, they should find for the plaintiff, and if they thought there was any negligence either in the stowage of the anchor or on the part of the plaintiff in putting himself in the place where he was on board his steamboat they should find for the defendant. The jury having found for the plaintiff a rule for a new trial was discharged. Pollock, C. B., after commenting on the finding of the jury which had negatived negligence on the part of the plaintiff's carrier, added, "On consideration I am of opinion that the law, as laid down by me in this respect, was not correct. I entirely concur with the rest of the court, that a person who is guilty of negligence, and thereby produces injury to another, has no right to say — 'Part of that mischief would not have arisen, if you yourself had not been guilty of some negligence.' I think that where the negligence of the party injured did not in any degree contribute to the immediate cause of the accident, such negligence ought not to be set up as an answer to the action. And certainly I am not aware that according to any decision which has ever occurred, the jury are to take the consequences and divide them in proportion according to the negligence of the one or the other party." Yet these cases are not really author- ities against the rule, for in each case the findings of the jury negatived negligence on the part of the plaintiff's carrier, and the dicta of the judges obviously had refer- ence, not to the liability of the passenger for the negli- gence of his carrier, in general, but to his liability for that negligence upon the part of the carrier which was too remote to be considered a proximate cause of the injury. In Mann v. Wieand, 1 where a widow sued to 1 4 Weekly Notes of Cases (Penna.) 6. 84 ATTRIBUTION OF THE CARRIER'S NEGLIGENCE. recover for injuries resulting in the death of her husband, the defendant's vicious dog having frightened the horses drawing a wa 2:011 in which the decedent had been invited to drive and was being carried, judgment upon a verdict for the plaintiff was reversed on other grounds, but in his judgment Mercur, C. J., said: "the husband had no control or authority over the driver ; nor did the driver control the personal conduct of the husband. He, therefore, was not liable for the negligent conduct of the driver. * * * Negligence in a general sense would not protect the defendant from liability for a direct and proximate injury caused by his own negligence." Judgment upon a verdict for the plaintiff was reversed in error upon other grounds, and the remarks of the learned Chief Justice upon this subject must be regarded as obiter dicta, which are not to be reconciled with the judgments of his court in the earlier case of Lockhart v. Lichten thaler, or the later case of P. & R. R. R. v. Boyer, in whose decision he participated. In England the rule has been criticised by the learned editor of Smith's Leading Cases, 1 by Williams, J., in the course of the argument in Tuff v. Warman, 2 and by the same judge again in Waite v. N. E. Ry., 3 and by Dr. Lush- ington in The Milan, 4 but its re-affirmance in the cases which have been cited from the Law Reports would seem to show that in the opinions of English judges these criticisms are not well founded. 85. In Little, Receiver, etc., v. Hackett, 5 where the facts were that the plaintiff, while being driven in a hired hack, was injured at a grade crossing by the con- curring negligence of the railway and the hack driver, the judge at the trial directed the jury that the negli- gence of the hack driver was not to be attributed to the 1 Vol. I, p. 366. ! 2C.B. N. S. 740, 89 E. C. L- ■ El. Bl. & El. 729, 96 E. C. L. 4 1 Lush. 388, 403. 5 116 U. S. 366. ATTRIBUTION OF THE CARRIER'S NEGLIGENCE. 85 passenger, unless it should be found that the passenger supervised and controlled the action of the driver. The jury having found a verdict for the plaintiff, judgment thereon was affirmed by the Supreme Court of the United States upon a bill of exceptions to the direction of the judge at the trial. Field, J., in delivering judgment, said : " Cases cited from the English courts * * * and numerous others decided in the courts of this country, show that the relation of master and servant does not exist between the passenger and the driver, or between the passenger and the owner. In the absence of this relation, the imputation of their negligence to the passen- ger, when no fault of omission or commission is charge- able to him, is against all legal rules. If their negligence could be imputed to him, it would render him equally with them responsible to third parties thereby injured, and would also preclude him from maintaining an action against the owner for injuries received by him. But neither of these conclusions can be maintained ; neither has the support of any adjudged cases entitled to consideration. The truth is, the decision in Thorogood v. Bryan rests upon indefensible ground. The identification of the passenger with the negligent driver, or the owner, with- out his personal co-oj)eration or encouragement, is a gratuitous assumption. There is no such identity. The parties are not in the same position. The owner of a public conveyance is a carrier, and the driver, or the person managing it, is his servant. Neither of them is the servant of the passenger ; and his asserted identity with them is contradicted by the daily experience of the world." 86. It may be suggested in reply to the line of argu- ment so forcibly stated by Field, J., in the last cited case, that the reason of the rule is, as put by Maule, J., in SO ATTRIBUTION OF THE CARRIER'S NEGLIGENCE. Thorogoood v. Bryan, 1 that the passenger having volun- tarily contraeted with his carrier, and having thereby put himself under the control of that carrier and of that carrier's servants, must take upon himself the conse- quences to himself of that carrier's negligence. It is irrelevant to urge that it must be conceded that the car- rier and the carrier's servant are not the servants of the passenger, and that the passenger is not responsible to third parties for injuries done to them by the negligence of the carrier, or of the carrier's servant ; for the attri- bution to the passenger of the carrier's contributory neg- ligence is based, not upon an assumption by the passen- ger of control over the carrier, but upon a submission by the passenger of his person to the control of the car- rier. Despite the criticisms, therefore, of so many and so high authorities, I venture to believe that Thorogood v. Bryan was rightly decided, and that the rule, as main- tained in England and in Pennsylvania, is founded upon correct principles of law. 2 1 8 C. B. 115, 65 E. C. L., section 82. 2 In opposition to the rule there can also be cited Colegrove v. N. Y. & N. H. R. R., 20 N. Y. 492 ; Bennett v. N. J. R. R., 86 N. J. Law 225 ; Tompkins v. Clay, St. H. R. R., Cal. , 18 Am. & Eng. R. R. Cas. 144; Chapman v. N. H. R. R., 19 N. Y. 341 ; W. St. L. & P. Ry. v. Shacklet, 105 111. 364, 12 Am. & Eng. R. R. Cas. 166 ; Dyer v. Erie R. R., 71 N. Y. 228 ; Danville Turnpike Co. v. Stewart, 2 Mete. (Ky.) 119 ; L. R. R. v. Case, 9 Bush 728; Eaton v. B. & L. R. R., 11 Allen 500 ; Transfer Co. v. Kelly, 36 Ohio St. 86, 3 Am. & Eng. R. R. Cas. 335; Masterson v. N. Y. C. & H. R. R. R., 84 N. Y. 247, 3 Am. & Eng; R. R. Cas. 408 ; Robinson v. N. Y. C. & II. R. R. R., 66 Id. 11 ; Malmsten v. M. II. & O. R. R., 49 Mich. 94, 8 Am. & Eng. R. R. Cas. 291 ; N. Y., L. E. & W. R. R. v. Steinbrenner, 47 N. J. L. 161 ; Perry v. Lansing, 17 Hun 34 ; Busch v. B. C. R. R., 29 Hun 112 ; Gray v. P. & R. R. R. (U. S. C. C. N. D. N. Y.), 22 Am. & Eng. R. R. Cas. 351 ; Webster v. II. R. R., 38 N. Y. 260 ; P., C. & St. L. R. R. v. Spencer, 98 Ind. 186, 21 Am. & Eng. R. R. Cas. 478. For the rule there can be cited, Thorogood v. Bryan, 8 C. B. 115, 65 E. C. L. ; Bridge v. G. J. Ry., 3 M. & W. 244 ; Catlin v. Hills, 8 C. B. 123, 65 E. C. L. ; Arm- strong v. L. & Y. Ry., L. R. 10 Ex. 47 ; Child v. Hearn, L. R. 9 Ex. 176 ; " The Bernina," 11 P. D. 31 ; Simpson v. Hand, 6 Wh. 31 1 ; Lockhart v. Lichtenthaler. 46 Penna. St. 151 ; P. & R. R. R. v. Boyer, 97 Id. 91 ; Smith v. Smith, 2 Pick. 621 ; C, C. & C. R. R. v. Terry, 8 Ohio St. 570 ; Puterbaugh v. Reasor, 9 Id. 484 ; ATTRIBUTION OF A DECEDENT'S NEGLIGENCE. 87 87. Upon the same principle it lias been held that where a wife is injured by collision with a train, while travelling in a vehicle driven by her husband, his con- tributory negligence bars her recovery. 1 So, where a master sues for injury done to his property, while under the care of a servant, the contributory negligence of that servant will bar a recovery by the master. 2 S. THE ATTRIBUTION OF THE NEGLIGENCE OF THE DECEDENT TO THOSE WHO SUE FOR DAMAGES FOR HIS DEATH. The contributory negligence of a person who has been killed will bar a recovery by those who sue for damages for his death. 88. Contributory negligence on the part of the per- son killed, will be a defence to an action by the parties entitled to recover for his death. The limitation in Lord Campbell's Act of the right to recover to such cases only " as would, if death had not ensued, have entitled the party to maintain an action to recover damages in respect thereof," has been construed by the Queen's Bench in Pym v. Gr. N. By., 3 to have " refer- ence, not to the nature of the loss or injury sustained, but to the circumstances under which the bodily injury arose, and the nature of the wrongful act, neglect, or default complained of," and Cockburn, C. J., added, Bryan v. N. Y. C. R. R., 31 Barb. 335 ; Nicholls v. G. W. Ry., 27 Up. Can. (Q. B.) 382 ; Payne v. C, R. I. & P. Ry., 39 Iowa 523 ; Mooney v. H. R. R. R., 5 Robertson : Miller, 25 Mich. 274. The rule has obviously no application to the case of a passenger, who, having been landed by a steamboat company upon a railway pier is run over on the pier by a train negligently bandied by the railway company, there being no concurring negli- gence on the part of the steamboat company. Malmsteu v. M. H. & O. R. R., 49 Mich. 94, 8 Am. & Eng. R. R. Cas. 291. 1 Carlisle v. Sheldon, 38 Vt. 440; Peck v. N. Y., N. H. & H. E. R., 50 Conn. 379, 14 Am. & Eng. R. R. Cas. 633. 2 T. & W. R. R. v. Goddard. 25 Ind. 185. S 2B. &S. 759, 110 E. C. L. 88 NEGLIGENCE OF CONTRACTING PARTY. " thus, if the deceased had by his own negligence mate- terially contributed to the accident whereby he lost his life, as he, if still living, could not have maintained an action in respect of any bodily injury, notwithstanding there might have been negligence on the part of the defendant, the present action could not have been sup- ported." So, Denman, C. J., in Tucker v. Chaplin, 1 in an action under Lord Campbell's Act, directed the jury, that "the rules in actions brought under this statute by representatives, are the same as in actions brought by the injured parties themselves ; therefore, if the deceased, by his conduct, leads to the accident, an action under the statute does not lie." 2 XI. THE NEGLIGENCE OF A CONTRACTING PARTY AS ATTRIBUTED TO THE PERSON ON WHOSE BEHALF THE CONTRACT WAS MADE. Where the action is brought to recover damages for a tort founded upon a contract, the contributory negligence of the contracting party will bar a recovery by the person upon whose behalf the contract was made. 89. Where the suit is brought, not for a pure tort, but for a tort founded upon contract, contributory neg- ligence upon the part of the contracting party will bar a recovery by the injured person on whose behalf the contract was made. Thus, in Waite v. N. E. Ey., 3 the plaintiff, an infant of five, had been taken by its grand- mother to the defendant's station, where she had bought tickets for the child and herself. Having to cross the line in order to get to the platform at which the train 1 2 C. & K. N. P. 730, 61 E. C. L. 1 See, also, Witherley v. Regents' Canal Co., 12 C. B. N. S. 2, 104 E. C. L. ; Lofton v. Vogles, 17 Ind. 105; Rowland v. Cannon, 35 Ga. 105; Gerety v. P., W. & B. R. R., 81 Penna. St. 274 ; Karle r. K. C, St. J. & C. B. R. R., 55 Mo. 476 ; Dewey v. C. & N. W. By., 31 Iowa 373 ; Kelly v. Hendrie, 26 Mich. 255. s El. El. & El. ; 719, 96 E. C. L. NEGLIGENCE OF CONTRACTING PARTY. 89 was to stop, the grandmother and child, in crossing the line, were run over and the child hurt. The jury hav- ing found specially that the defendants and the plain- tiff's grandmother were negligent, on these findings Martin, B., entered the verdict for the plaintiffs, with leave to the defendants to move for a nonsuit or the entry of a judgment for them. After argument the rule was made absolute. Campbell, C. J., said : " The relation of master and servant certainly did not subsist between the grandchild and the grandmother ; and she cannot, in any sense, be considered his agent ; but we think that the defendants, in furnishing the ticket to the one and the half ticket for the other, did not incur a greater liability toward the grandchild than toward the grandmother, and that she, the contracting party, must be implied to have promised that ordinary care should be taken of the grandchild. * * * At all events, a complete identification seems to us to be constituted between the plaintiff and the party whose negligence contributed to the damage which is the alleged cause of action, in the same manner as if the plaintiff had been a baby only a few days old, to be carried in a nurse's arms." A writ of error having been taken to the Exchequer Chamber, the judgment was affirmed. Cockburn, C. J., said : " I put the case on this ground, that, when a child of such tender years and imbecile age is brought to a railway station or to any conveyance, for the pur- pose of being conveyed, and is wholly unable to take care of itself, the contract of conveyance is on the im- plied condition that the child is to be conveyed subject to due and proper care on the part of the person having it in charge." Pollock, C. B., said : " There really is no difference between the case of a person of tender years under the care of another, and a valuable chattel committed to the care of an individual, or even not com- 90 NEGLIGENCE OF PARENTS, ETC. mitted to such care. The action cannot be maintained unless it can be maintained by the person having the apparent possession, even though the grandchild or the chattel was not regularly put into the possession of the person, as, for instance, though the party taking charge of the child had done so without the father's consent; that circumstance would make no difference as to the question of the child's right." Bramwell, B., said : " In form the action is for a wrong ; but it is, in fact, for a breach of duty created by contract. It is alleged that the plaintiff was lawfully on the rail- way. That could be so only on the supposition that he had become a passenger through the instrumentality of himself or another. There must be a contract or duty. It is impossible to say that the company con- tracted any other duty toward the infant, thus accom- panied, than they would have contracted toward an adult, or that they were responsible for what would have occasioned no mischief but for the negligence of a person having the custody of the plaintiff." XII. THE ATTRIBUTION TO INFANTS OF THE CONTRIB- UTORY NEGLIGENCE OF PARENTS AND GUARDIANS. Where the injured person is an infant of tender years, and the ground of the action is a pure tort, it is for the jury and not for the court to determine whether or not the contributory negligence of the parents or guardians of the infant in permitting him or her to be at large is such as to bar the infant's recovery. 90. There are many authorities for the proposition that where an injured infant is the plaintiff, and the cause of action is a pure tort, contributory negligence on the part of the parents or guardians of the infant plaintiff in permitting him or her to roam at large will not bar the plaintiff's recovery. The question does not seem to have been ruled in England. In Lynch v. NEGLIGENCE OF PARENTS, ETC. 91 Nurdin, 1 which is often cited in support of this propo- sition, the question was not raised, although in the case of Lygo v. Newbold, 2 Lynch v. Nurdin having been cited, Alderson, B., misapprehending that case, said, " the negligence, in truth, is attributable to the parent who permits the child to be at large. . It seems strange that a person who rides in his carriage without a ser- vant, if a child receives an injury by getting up behind for the purpose of having a ride, should be liable for the injury;" but Pollock, C. B., obviously replying to Alderson, B., put Lynch v. Nurdin on the correct ground, that "the plaintiff, being a child of tender years, could not be considered as causing any part of the injury it had sustained, but that the mischief was occasioned solely by the defendant's default." 3 91. Cowen, J., in Hartfield v. Roper, 4 where the plaintiff, a child of two years of age, had sued to re- cover for injuries received by being run over while straying on a highway, puts the ground of his judg- ment against the plaintiff thus : " an infant is not sui juris. He belongs to another to whom discretion in the care of his person is exclusively confided. That person is keeper and agent for this purpose, and in re- 1 1 Q. B. 29, 41 E. C. L. 2 8 Ex. 302. 3 In support of the proposition there can aso be cited : Robinson v. Cone, 22 Vt. 213 ; Birge v. Gardiner, 19 Conn. 507 ; Kay v. P. E. R., 65 Penna. St. 269 ; G. St. R. R. v. Hanlon, 53 Ala. 70 ; B. & I. R. R. v. Snyder, 18 Ohio St. 399 ; N. & P. R. R. v. Ormsby, 27 Gratt. 455 ; Frick v. St. L., K. C. & N. Ry., 75 Mo. 542 ; C. H. & 1 1. Ry. v. Moore, 59 Tex. 64, 10 Am. & Eng. R. R. Cas. 745 ; Daley v. N. & W. R. R., 26 Conn. 591 ; McGeary v. E. R. R., 135 Mass. 363, 15 Am. & Eng. R. R. Cas. 407 ; Smith v. A., T. & S. F. R. R., 25 Kans. 738, 4 Am. & Eng. R. B. Cas. 554 ; St. L., I. M. & R. By. r. Freeman, 36 Ark. 41, 4 Am. & Eng. B. B. < as. 608. Against the proposition there can be cited: Ilartiield r. Roper, 21 Wend. 615 ; Mangam v. B. C. R. R., 38 N. Y. 456 ; Holly v. Boston Gas Light Co., 8 Gray 123; Brown v. E. & N. A. R. R., 58 Me. 384; Fitz- gerald v. St. P., M. & M. Ry., 29 Minn. 336, 8 Am. & Eng. R. R. Cas 310; L. & I. Ry. v. Iluffmann, 28 Ind. 287 ; T., W. & W. Ry. v. Grabel, 88 111. 441 ; Meeks v. S. P. Ry., 52 Cal. 602. * 21 Wend. 615. 92 NEGLIGENCE OF PARENTS, ETC. spect to third persons his act must be deemed that of the infant, his neglect, the infant's neglect. If his propel agent and guardian has suffered him to incur mischief, it is much more fit that he should look for redress to that guardian, than that the latter should negligently allow his ward to be in the way of travellers and then harass them in courts of justice, recovering heavy ver- dicts for his own misconduct." 92. On the other hand in Kay v. P. R. R., 1 where the plaintiff, nineteen months of age, sued to recover for injuries caused by being run over by defendant's cars upon a siding on an open lot, of which lot defendant was in possession. The plaintiff lived with her parents in a shanty on the lot, and the defendant had permitted the public to make use of the ground. The injury was caused by detaching a lumber car and sending it around a curve on a down grade .unattended by a brakeman. The jury found for the plaintiff, but upon a point re- served, the court below entered judgment for the defend- ant non obstante veredicto, which was reversed in error upon the ground that the defendant having licensed the public use of the lot it was for the jury to say whether they had been negligent in moving their cars under the circumstances, and also that the negligence of the par- ents, if any, in permitting the child to stray from the house could not be imputed to the child, Agnew, J., saying: "The doctrine which imputes the negligence of the parent to the child in such a case as this is repulsive to our natural instincts and repugnant to the condition of that class of persons who have to maintain life by daily toil. It is not the case where the positive act of a parent or guardian had placed a child in a position of danger, necessarily requiring the care of the adult to be constantly exercised, as where a parent takes a child 1 65 Penna. St. 2G9. NEGLIGENCE OF PAKENTS, ETC. 93 into the cars, and by his neglect suffers it to be injured by straying off upon the platform. But here a mother toiling for daily bread, and having done the best she could, in the midst of her necessary employment, loses sight of her child for an instant, and it strays upon the track. With no means to provide a servant for her child, why should the necessities of her position in life attach to the child, and cover it with blame ? When injured by positive negligence, why should it be without redress ? A negligent wrong is done ; it is incapable of contributing to it — then why should the wrong not be compensated ?" 93. In order to justly estimate the relative weight and value of these conflicting authorities, it must be remem- bered that the precise question, is, whether or not, when an infant has been injured by the negligence of a rail- way, that is, by a failure on the part of the railway to perform some specific duty which, under the particular circumstances of the case, it owed to the infant, the plaintiff's recovery is to be barred by the antecedent failure of his or her parents or guardians to perform that general duty of protection which they owe to the infant. The question, therefore, does not arise until negligence on the part of the railway has been proven, but when that has been proven, the antecedent negli- gence on the part of the infant's parents or guardians does not constitute, injustice, a defence to the railway, for if the railway can say to the infant, ''you would not have been injured by my negligence, if your parents or guardians had not been negligent in permitting you to stray on the highway," the infant can reply, "it is true they neglected their duty, but notwithstanding that neglect I would not have been hurt if you had not failed to do your duty to me." The necessary allegations of the injured infant and the railway being thus stated, it 94 NEGLIGENCE OF PARENTS, ETC. would seem that the negligence on the part of the infant's parents or guardians is a remote and not a proximate cause of the injury, and that, for that reason, that negligence is not in any proper sense contributory negligence. This line of reasoning renders it unneces- sary to invoke the humanitarian and sentimental consider- ations upon which Agnew, J., dwells in Kay v. P. R. R., and the intrusion of which into the judgments of courts so often furnishes illustrations of the maxim "hard cases make bad law." Dr. Wharton 1 assumes that in England the law is as laid down in Hartfield v. Roper. The question has, as I have stated, never been raised in England. Neither Lynch v. Nurdin, 2 Single- ton v. E. C. Ry., 3 Mangan v. Atterton, 4 nor Waite v. N. E. Ry., 5 touch the question. When it does come to be considered in England, the application of the doctrine of Davies v. Mann will necessarily lead to the conclusion that as the injury could have been, notwithstanding the negligence of the infant's parents or guardians, avoided by the exercise of reasonable care on the part of the railway, the negligence of the parents or guardians will not bar the plaintiff's recovery. The carefully guarded judgments in Waite v. N. E. Ry., show that that case rests on the contractual relation between the parties and fur- nishes no authority for an action grounded on a pure tort. 94. Of course, where a parent personally conducts a child into a position of danger, the parent's contributory negligence will be attributed to the child ; as, for in- stance, where a child of tender years is injured while trespassing upon a railway line in company with its mother. 6 1 Law of Negligence, sec. 311. ! 1 Q. E. 29, 41 E. C. L. '7C.B. N. S. 287, 97 E. C. L. * L. R. 1 Ex. 239. 4 El. Bl. &E1. 719, 96 E. C. L. 9 Grethen v. C. M. & St. P. Ry. (U. S. C. C District of Minnesota), 19 Am. & Eng. R. R. Cas. 342. CONTRIBUTORY NEGLIGENCE OF STRANGERS. 95 XIII. THE ATTRIBUTION OF THE CONTRIBUTORY NEGLI- GENCE OF STRANGERS. The contributory negligence of third persons, unconnected with the plaintiff or the person injured, will not bar the plaintiff's recovery. 95. The contributory negligence of persons uncon- nected with the plaintiff will not be imputed to the plaintiff as contributory negligence. Thus in N. P. R. R. v. Mahoney, 1 the plaintiff, a child of four years of age, while playing near the defendant's line, having been picked up by an aunt to whom her parents had not delegated her care and custody, was injured by the railway's negligence concurring with that of the aunt who was carrying her across the line ; and it was held that the negligence of the aunt could not be imputed as contributory negligence to the plaintiff. In P. A. & M. P. Ry. v. Caldwell, 2 a similar ruling was made where an infant was injured by negligence on the part of the railway, concurring with the negligence of another in- fant who was a companion of the plaintiff, but not in charge of her. 3 1 57 Penna. St. 187. 1 74 Penna. St. 421. s See also Eaton v. B. & L. R. R., 11 Allen 500 ; Scott v. Shepherd, 2 W. Bl. 892; Dixon v. Bell, 5 M. & S. 198, Stark 287, 2 E. C. L.; Illidge v. Goodwin, 5 C. & P. 190, 24 E. C. L. ; Hughes v. Macfie, 2 H. & 0. 744 ; Hill v. New River Co., 9 B. & S. 303 ; Burrows v. March G. & C. Co., L. R. 5 Ex. 66, 7 Id. 96 ; Collins v. Middle Level Commrs., L. R. 4 C. P. 279; Harrison v. G. N. Ry., 3 H. & C. 321 ; Watling v. Oastler, L. R. 6 Ex. 73 ; Daniels v. Potter, 4 C. & P. 262, 19 E. C. L. ; Clark v. Chambers, L. R., 3 Q. B. D. 327, criti- cising Mangan v. Atterton, L. R. 1 Ex 239. 96 FOE WHOM THE RAILWAY IS LIABLE. BOOK II. THE PERSONS FOR WHOSE ACTS OR OMISSIONS THE RAIL WAY IS LIABLE. CHAPTEE I. THE GENERAL NATURE OF THE RAILWAY'S RESPONSIBILITY FOR OTHERS. I. The liability as affected by the character of the act, as one of omission or of commission. II. Special and general agency. III. Classification of the persons for whose acts railways are liable. I. THE LIABILITY AS AFFECTED BY THE CHARACTER OF THE ACT, AS ONE OF OMISSION OR OF COMMISSION. Where the injury is done by the omission of a particular act of care which the duty of the railway to the person injured requires it to do for his protection, the fact of the omission fixes the liability of rail- way ; and the relation between the railway and the person who has omitted to perform the duty is immaterial ; but where the injury is done by an act of commission, the liability of the railway depends upon the fact of the relation of agency between the railway and the actual wrongdoer. 96. To render a railway liable for an injury in the course of its operations to the person of one who is him- self without fault, it must necessarily be proven that the injury resulted from either the omission of some particular act of care, or the commission of some par- ticular act of carelessness or of wilful wrongdoing, or the negligent performance of some rightful act by the railway, or by some person for whose act causing the injury the railway is legally responsible. LIABILITY AS AFFECTED BY CHARACTER OF ACT. 97 11 97. Of course, where the injury is done by an act, the actual wrongdoer is civiliter responsible to the person injured ; but the legal liability of the railway for the injury is dependent upon the positive or negative char- acter of the act which causes the injury, and upon the relation of the wrongdoer to the railway. Where the injury is done by the omission of a particular act of care, which the duty of the railway to the person in- jured requires it to do for his protection, the fact of the omission fixes the liability of the railway ; and the re- lation between the railway and the individual who has omitted to perform the duty is immaterial; for, as Blackburn, J., has said, 1 " the liability for an omission to do something depends entirely on the extent to which a duty is imposed to cause that thing to be done, and * * * it is quite immaterial whether the actual actors are servants or not." Upon the same principle, a railway is liable for an independent contractor's non -perform- ance of a duty whose performance was incumbent uj:>on his employer, the railway. 2 On the other hand, where the injury is done by an act of commission, as the rail- way is an artificial person and can act only by its agents or servants, its liability must depend upon the fact of the relation of agency between the railway and the actual wrongdoer, for, as Rolfe, B., has said, 3 "the lia- bility of any one, other than the party actually guilty of a wrongful act, proceeds on the maxim ' qui facit per alium facit per se.' " 4 1 The Mersey Docks Trustees v. Gibbs, L. K. 1 H. L. 115. 1 Pickard v. Smith, 10 C B. N. S. 470, 100 E. C. L.; Bower v. Peate, 1 Q B. D. 326. 3 Reedie v. L. & K W. Ry., Ilobbitt v. Same, 4 Ex. 243. * See, also, the judgment of Lord Cranworth in Bartonshill Coal Co. v. Reid 3 Macq. H. L. 282. 7 98 FOR WHOSE ACTS THE RAILWAY IS LIABLE. II. SPECIAL AND GENERAL AGENCY. The relation between the railway and the actual wrongdoer may be either a special agency, or that general agency which the law charac- terizes as that of master and servant. 98. In the case of a special agency the railway can be made liable only by proof of a delegation of authority to do the particular act which is the cause of the injury, or by a subsequent ratification of its performance. Where the act is committed by a servant, the liability of the railway is fixed if the act be within the scope of, and be done in the exercise of, the servant's dele- gated authority. III. CLASSIFICATION OF THE PERSONS FOR WHOSE ACTS RAILWAYS ARE LIABLE. 99. The persons for whose acts causing injury rail- ways are liable, may be classified as follows : 1. Servants of the railway, including under that term all of the railway's officers and employes of every grade. 2. Independent contractors. 3. Other corporations and individuals, including con- necting railways, owners of cars run over the line, les- see railways, etc. LIABILITY OF RAILWAYS FOR-' ACTS'- OF "SE RVAN"rS. 99 CHAPTER II. THE LIABILITY OF RAILWAYS FOR THE ACTS OF THEIR SERVANTS. I. The general nature of a master's liability for the acts of a servant. II. The relation of master and servant must in fact exist. III. The act must be within the scope of the servant's employment. IV. If the relation exists, and if the act be within the scope of the employ ment, it is not material that the master did not order the particulai act. V. The liability of the railway for its servants' trespasses. VI. The liability of the railway for its servants' wilful acts. I. THE GENERAL NATURE OF A MASTER'S LIABILITY FOR THE ACTS OF A SERVANT. The maxim " respondeat superior " means that a railway, like other masters, is civiliter responsible for the acts of its servants if the par- ticular act causing the injury be within the scope of, and be done in the exercise of, the servant's delegated authority. 100. The general rule is that a railway, like other masters, is legally responsible for an injury done by an act of its servant if the particular act be within the scope of, and be done in the exercise of, the servant's delegated authority. 1 1 Bartonshill Coal Co. v. Reid, 3 Macq. H. L. 266, 4 Jur. N. S. 767 ; Randle- son v. Murray, 8 A. & E. 109, 35 E. C. L. ; Yarborough v. Bank of England, 16 East. 6 ; Whitfield v. S. E. Ry., 1 El. Bl. & El. 115, 96 E. C. L. ; Limpus v. London Genl. Omnibus Co., 1 II. & C. 526 ; Green v. Same, 7 C. B. N. S. 290, 97 E. C. L. ; Seymour v. Greenwood, 6 H. & N. 359 ; Lawson v. The Bank of London, 18 C. B. 84, 86 E. C. L.; E. C. Ry. v. Broom, 6 Ex. 314 ; Chilton v. L. & C. Ry., 16 M. & W. 212; Smith v. B. & S. Gas Light Co., 1 Ad. & El. 526, 28 E. C. L. ; Patten v. Rea, 2 C. B. N. S. 606, 89 E. C. L. ; Goodman v. Kennell, 3 C. & P. 167, 14 E. C. L.; Page v. Defries, 7 B. & S. 137 ; Shaw ». Reed, 9 W. & S. 72 ; N. Y. & W. Tel. Co. r. Dryburgh, 35 Penna. St. 298 ; P. & R. R. R. v. Derby, 14 How. 469. 100 GEKEKALMIVJEE OF LIABILITY FOE SERVANTS. 101. The reason of the rule is nowhere more clearly explained than hy Lord Cranworth, 1 who said : " Where an injury is occasioned to any one by the negligence of another, if the person injured seeks to charge with its consequences any person other than him who actually caused the damage, it lies on the person injured to show that the circumstances were such as to make that other person responsible. In general, it is sufficient for the purpose to show that the person whose neglect caused the injury was at the time when it was occasioned acting not on his own account, but in the course of his employment as a servant in the business of a master, and that the damage resulted from the servant so em- ployed not having conducted his master's business with due care. In such a case the maxim ' respondeat supe- rior ■ ' prevails, and the master is responsible. Thus, if a servant driving his master's carriage along the high way carelessly runs over a bystander, or, if a game- keeper employed to kill game carelessly fires at a hare so as to shoot a person passing on the ground, or, if a workman employed by a builder in building a house negligently throws a stone or brick from a scaffold and so hurts a passer-by ; in all these cases (and instances might be multiplied indefinitely) the person injured has a right to treat the wrongful or careless act as the act of the master : Qui facit per alium faeit per se. If the master himself had driven his carriage improperly, or fired carelessly, or negligently thrown the stone or brick, he would have been directly responsible, and the law does not permit him to escape liability because the act complained of was not done with his own hand. He is considered as bound to guarantee third persons against all hurt arising from the carelessness of himself, 1 Bartonshill Coal Co. v. Reid, 3 Macq. H. L. 282. RELATION OF MASTER AND SERVANT AS A FACT. 101 or of those acting under his orders, in the course of his business. Third persons cannot, or, at all events, may not, know whether the particular injury complained of was the act of the master or the act of the servant. A person sustaining injury in any of the modes I have suggested has a right to say : ' I was no party to your carriage being driven along the road, to your shooting near the public highway, and to your being engaged in building a house. If you choose to do, or cause to be done, any of these acts, it is to you, and not to your servants, I must look for redress, if mischief happens to me as their consequence.' A large portion of the ordi- nary acts of life are attended with some risk to third persons, and no one has a right to involve others in risks without their consent. This consideration is alone sufficient to justify the wisdom of the rule which makes the person by whom, or by whose orders, these risks are incurred, responsible to third persons for any ill consequences resulting from want of due skill or caution." The reason of the rule, therefore, is, that the master who has made choice of an incompetent or careless servant ought, in justice, to indemnify those who are not parties to the contract of service, and who have been injured in the course of the servant's action in the exercise of the authority delegated to him by his master. II. THE RELATION OF MASTER AND SERVANT MUST IN FACT EXIST. The rule does not apply to cases where the railway does not stand in the character of employer to the person by ivhose act the injury has been occasioned. 102. In order, to render the railway liable for the act of a servant, it must be shown that the relation of 102 LIABILITY FOR ACTS OF POSTAL CLERKS, ETC. master and servant in fact exists. 1 The railway is, therefore, not liable if it does not stand in the character of employer to the party by whose act the injury has been occasioned. 2 Thus, a railway is not liable for in- juries caused to a person while at work on a station platform by the negligent act of a postal agent, trans- ported under contract with the Post-Office Department, in throwing a mail bag from the mail car of a passing train, it being proven that it was the usage of business for the mail bag to be thrown off at a point some two hundred feet away from the station, and that the rail- way had, therefore, no reason to anticipate that the mail bag would be thrown on the station platform. 3 In other cases, 4 the railway was held liable to passengers who, while waiting for a train on a station platform, were injured by mail bags thrown by postal agents, it being proven that the railway had reason to know that mail bags were habitually thrown upon that platform from passing trains, and the railway being bound to guard its passengers against such injuries, whomsoever might be the person w T hose act caused the injury. These 1 Mitchell v. Crassweller, 13 C. B. 237, 76 E. C. L. ; Joel v. Morison, 6 C. & P. 501, 25 E. C. L ; Sleath v. Wilson, 9 C. & P. 607, 38 E. C. L. ; Lamb v. Ptilk, Id. 629 ; Bard v. Yohn, 26 Penna. St. 4S2 ; Storey v. Ashton, L. R. 4 Q. B. 476 ; Rayner v. Mitchell, 2 C. P. D. 357 ; Burns v. Poulson, L. R. 8 C. P. 563 ; Venables v. Smith, 2 Q. B. D. 279 ; Lyons v. Martin, 8 A. & E. 502, 35 E. C. L. ; McKenzie v. McLeod, 10 B. 385, 25 E. C. L. ; Williams v. Jones, 3 H. & C. 602 ; Coleman v. Riches, 16 C. B. 104, 81 E. C. L. ; Stevens v. Woodward, 6 Q. B. D. 318. 2 Laugher v. Pointer, 5 B. & C. 547, 12 E. C. L. ; Quarman v. Bennett, 6 M. & W. 499 ; Hughes v. Boyer, 9 Watts 556 ; Reedie v. L. & N. W. Ry., Hobbit v. Same, 4 Ex. 243; Milligan v. Wedge, 12 A. & E. 737, 40 E. C. L.; Rapson v. Cubitt, 9 M. & W. 710 ; Lucas v. Mason,, L. R. 10 Ex. 251 ; Murray v. Currie, L. R. 6 C. P. 24; Rourke v. White Moss Colliery Co., 2 C. P. D. 205; Stevens v. Armstrong, 2 Selden 435 ; McCullough v. Shoneman, 14 Weekly Notes of Cases 395 ; Hemingway v. McCullough, 15 Id. 328. 3 Muster v. C. M. & St. P. Ry., 61 Wise. 325, 18 Am. & Eng. R. R. Cas. 113. 4 Snow v. F. R. R., 136 Mass. 552, 18 Am. & Eng. R. R. Cas. 161 ; Carpenter P. B. & A. R. R., 97 N.Y. 494, 21 Am. & Eng. R. R. Cas. 331. LIABILITY FOR THE ACTS OF VOLUNTEERS. 103 cases agree, not only in holding the postal agents not to be servants of the railway, but also in treating as the test of the railway's liability its failure to guard those who are lawfully upon its station platform against dangers which may reasonably be regarded as likely to occur. 103. Nor is a railway liable for the acts of a volun- teer assisting its servants, as, for instance, for the negli- gence of passengers in assisting other passengers to alight j 1 nor for advice given by passengers to another passenger to leap from a moving train ; 2 or to leave a train at a place other than a station ; 3 nor is the railway to be held liable for the negligent act of a person en- gaged as his assistant by a servant to whom the railway has not delegated the power of employing an assistant. 4 Whether or not the person causing the injury be a ser- vant of the railway is, of course, a question of fact for the jury. 5 104. The test of the existence of the relation of master and servant is to be found not in the payment of the servant's wages by the railway, but in the exercise by the railway of authority in appointing the servant, in di- recting his acts, in receiving the benefit of those acts, and in reserving the power of dismissing the servant. 6 1 Burrows v. Erie Ry., 63 N. Y. 556 ; Morrison v. Erie Ry., 56 Id. 302 ; O. & N. Ry. v. Stratton, 78 111. 88. 2 Filer v. N. Y. C. & H. R. R. R., 59 N. Y. 351. 3 Frost v. G. T. R. R., 10 Allen 387 ; C. & I. R. R. v. Farrell, 31 Ind. 408. * Jewell v. G. T. Ry., 55 N. H. 84. 5 P. R. R. v. Spicker, 105 Penna. St. 142. 6 Laugher v. Pointer, 5 B. & C. 547, 12 E. C. L. ; Quarman v. Bennett, 6 M. & W. 41)0 ; Purnell v. Gh W. Ry.. mentioned by Melish, L. J., in 2 C. P. D. 210 ; Holmes v. Onion, 2 C. B. N. S. 790, 89 E. C. L. ; Fenton v. City of Dublin Steam Packet Co., 8 A. & E. 835, 35 E. C. L. ; Dalyell v. Tyrer, El. Bl. & El. 890, 96 E. C. L., 28 L. J. Q. B. 25 ; Jones v. Mayor, etc., of Liverpool, 14 Q. B. D. 890; Fletcher v. Braddick, 5 Bos. & Pul. 182; Sproul v. Hemmingway, 14 Pick. 1 ; Rourke v. White Moss Colliery Co., 2 C. P. D. 205 ; Little v. Hacket, 116 U. S. 366. 104 the scope of employment. iii. the act must be within the scope of the servant's employment. In order to render the railway liable for the act of a servant, it must also be shoicn that the particular act which caused the injury was within the scope of the servant's employment. 105. Where the relation of master and servant exists between the railway and the person whose act is the cause of injury to another person, the railway is not liable if the servant in causing the injury is not acting within the scope of his employment. Thus, 1 a tenant in possession of a house was held not to be liable to the owner of the house for the act of a servant who, being employed to light a fire in a fire-place, undertook to clean the chimney by burning it out, and in so doing- set fire to the house. So one, 2 to whom another had loaned his shed, in order that a sign-board might be made therein, was held in the Exchequer Chamber not to be liable for the act of a carpenter, who, while en- gaged in making the sign-board, lit his pipe and dropped the match, thereby setting fire to and burning the shed. This doctrine is also illustrated by the cases of injury done by servants who, entrusted with their employers' horses for the doing of errands, turn aside to accomplish some purpose of their own, and while accomplishing that injure some one else. The test in cases of this class is that put by Maule, J., 3 who says, "the master is liable, even though the servant, in the performance of the duty, is guilty of a deviation or a failure to perform it in the strictest and most convenient manner; but when the servant, instead of doing that which he is employed to do, does something which he is not employed to do at 1 McKenzie v. McLeod, 10 B. & C. 385, 25 E. C. L. 2 Williams v. Jones, 3 H. & C. G02. 3 Mitchell v. CrassweDer, 13 C. B. 237, 76 E. C. L. THE SCOPE OF EMPLOYMENT. 105 all, then the master cannot be said to do it by his ser- vant, and therefore he is not responsible for the negli- gence of the servant in doing it." Upon this principle, a sleeping-car company was held not to be liable for injuries caused to one standing on a station platform, by the act of the porter of a sleeping-car in throwing, for his personal convenience, a bundle of soiled clothes from a moving car. 1 106. But the fact that a railway servant has for a considerable length of time performed a certain duty is evidence to go to the jury that in so doing he was acting by the express or implied assent of the railway, thus, 2 a flagman, not employed by the railway to watch a main line crossing, but accustomed to warn persons about to cross the main line, having invited the plaintiff to cross when the line was not clear, and the plaintiff having beeu injured, it was held that "the fact that he had uni- formly performed such duty for several years was com- petent evidence to be submitted to the jury as tending to prove that he was so acting by the express or implied assent of the railway." IV. IT IS NOT MATERIAL THAT THE MASTER DID NOT ORDER THE PARTICULAR ACT. Where the relation of master and servant exists, and where the act causing the injury is within the scope of the servant's employment, it is not material that the master did not order or even know of the doing of the particular act, or that in doing the act, or in the man- ner of its performance, the servant disobeyed the express injunctions of the master. 107. If the relation of master and servant exist, and if the act causing the injury be within the scope of the ser- 1 Walton v. N. Y. C. S. C. Co., 139 Mass. 556, 21 Am. & Eng. R. R. Cas. 600, note. 2 Peck v. M. C. Ry., Mich. , 19 Am. & Eng. R. R. Cas. 257. 10G LIABILITY FOR A SERVANT'S TRESPASSES. vant's employment, it is not material that the master did not order or even know of the doing of the particu- lar act. 1 This view is clearly stated by Willes, J., in a case 2 where a bank was held liable for a fraudulent misrepresentation made by its cashier in the course of business. That learned judge said : " the general rule is that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, although no express command or privity of the master be proved," and after referring to specific instances, he adds : " in all these cases it may be said, as it was said here, that the master has not authorized the act. It is true he has not authorized the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in." V. THE LIABILITY OF THE RAILWAY FOR ITS SERVANTS' TRESPASSES IN THE EXERCISE OF THE AUTHORITY DELEGATED TO THEM. 108. Nor will the railway escape liability, if in doing the act or in the manner of its performance, the servant disobey the express injunctions of his superior officers, provided that the act be of that class with whose per- formance the servant is charged. Thus, in 3 a case which Pigott, B., has characterized as " very near the line," a railway was held liable for the act of its porter in pull- ing the plaintiff out of a railway carriage about to start, because he believed the plaintiff was in a wrong car- 1 Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259 ; Huzzey v. Field, 2 C. fcT. & R. 432; The Thetis, L. R. 2 Ad. &Ec. 365; Johnson v. C. V.R. R., 56 Vt. 707. 2 Barwick v. English Joint Stock Bank, L. R. 2 Ex. 265. 8 Bayley v. M. S. & L. Ry., L. R. 7 C. P. 415, 8 Id. 148. LIABILITY FOR A SERVANT'S TRESPASSES. 107 riage, although the plaintiff was, in fact, in his right carriage, it being proven that while the rules of the com- pany required the porters to prevent passengers from going by wrong trains, they did not expressly direct them to remove a passenger from a carriage. So 1 a railway has been held liable for the act of a brakeman in removing a passenger from a car reserved for ladies, it being the duty of the brakeman to notify the passen- ger that the car was reserved. So 2 a railway has been held liable for the death of a passenger resulting from his wrongful and forcible removal from a car by its conductor. So 3 a railway has been held liable for its engine-driver's negligent blowing of a whistle in dis- obedience of the railway's regulations. Where the particular act is done in furtherance of the general pur- pose of the railway, and is within the scope of the servant's author- ity, the railway is liable, even though the act be a trespass. 109. "Where the particular act is done in furtherance of the general purposes of the railway, and is within the scope of the servant's authority, the railway is liable, even though the act be a trespass. 4 Thus, 5 in a case where the plaintiff was a passenger in the defendant's omnibus, and was removed by the conductor, a servant of the defendant, in such a manner that the plaintiff fell into the road and was severely injured, Pollock, C. B., said : " I do not believe he intended to do any mischief, but his want of care clearly was the cause of the mis- chief, and therefore I think the effect of the evidence is that the servant, by carelessly executing his master's » Peck v. X. Y. C. & II. R. R. R., 70 X. Y. 587. 2 P. R. R. v. Vandiver, 42 Penna. St. 365. 3 P. W. & B. R. R. v. Brannen, 17 Weekly Notes of Cases (Penna.) 227. 1 Yarborongh p. Bank of England, Hi East. 6 ; Whitfield v. S. E. Ry., 1 El. Bl. & El. 115, 96 E. C. L. ; Green v. L. G. Omnil us Co., 7 C. B. N. S. 290, 97 E. C. L. ; Limpus v. S:une, 1 II. & C. 526 ; Roe v. B. L. & C. J. Ry., 7 Ex. 36. 5 Seymour v. Greenwood, 7 II. & N. 354. 108 LIABILITY FOR A SERVANT'S TRESPASSES. commands, caused the mischief complained of, and that is what I should have found had I been on the jury. There is no doubt that the law on this subject was once very much confused, and when McManus v. Crickett 1 was decided, the law had not been settled. I think the view we take of this case is quite in conform- ity with all the more recent decisions. Public safety and private convenience require that we should so de- cide ; for if we were to hold that a railway company is not to be responsible for the act of its servant, causing damage to a third person, unless it be an act done in the mere negligent obedience to the orders of the company, there would be no protection to lite public." And Mar- tin, B., added : " I have no doubt that if the conductor used unnecessary violence in removing the plaintiff, the master would be responsible. If, by an act done by a servant within the scope of his ordinary employment, another person is injured, that person may maintain an action against the master ; and the act of removing the plaintiff from the omnibus was within the scope of the conductor's ordinary employment. * * * The criterion is not whether the master has given the authority to do the particular act, but whether the servant does it in the ordinary course of his employment." 110. The railway is, therefore, liable for the acts of its conductors, brakemen, guards, or porters, in wrongfully ejecting either passengers or trespassers from its trains, or in rightfully ejecting such persons with unnecessary force ; 2 and for the acts of a station master in ejecting 1 1 East. 107. * Seymour v. Greenwood, 7 H. & N. 354 ; Bayley v. M. S. & L. Ry., L. R. 7, C. P. 415, 8 Id. 148 ; P. R. R. v. Vandiver, 42 Penna. St. 365 ; R. R. v. Finney, 10 Wise. 3S8 ; Weed v. P. R. R., 17 N. Y. 362 ; Moore v. F. R. R., 4 Gray 465 ; Holmes v. Wakefield, 12 Allen 580 ; L. N. A. & C. E. R. v. Dunkin, 92 Ind. 601, 15 Am. & Eng. R. R. Cas. 422 ; State v. Ross, 2 Dutcher 224 ; Coleman v. N. Y. & X. II. R. R., 106 Mass. 160; Brokaw v. N. J. R. R., 3 Vroom 328; C. & A. R. R. v. Flagg, 43 111. 364 ; E. & C. R. R. v. Banin, 26 Ind. 70 ; G. W. LIABILITY FOE EXPULSIONS. 109 with unnecessary violence one who was loitering in the station ; l and for injuries caused by assaults by its ser- vants upon passengers while the servants are acting within the scope of their authority. 2 111. Some of the cases 3 hold that the forcible removal of trespassers from a railway train does not fall within the implied authority of train hands, and that to render the railway liable for damages done by such an act an ex- press authority must be shown. The doctrine of most of the cases, however, is, that wherever a railway servant is put in charge of any property of the railway, as a station master in charge of a station, or a conductor in charge of a train, or an engine-driver or fireman in charge of an engine, or a brake man in charge of a car, that servant is necessarily charged with the duty of pro- tecting that particular property, and he is, therefore, for that purpose vested with an implied authority to re- move trespassers therefrom ; and if he makes a mistake, either by removing a person who is rightfully therein or thereon, or by using unnecessary violence in the re- moval of a trespasser, the railway must be held liable for all such injuries as result, in the one case from the R. R. v. Miller, 19 Mich. 305 ; Jackson v. S. A. R. R., 47 N. Y. 274 ; Kline v. C. P. R. R., 39 Cal. 537 ; Higgins v. W. T. & R. R., 46 N. Y. 23 ; C. C. & I. R. R. v. Powell, 40 Ind. 37 ; Sanford v. E. A. R. R., 23 N. Y. 343 ; Marquette v. C. & N. W. Ry., 33 Iowa 562 ; Carter v. L. N. A. & C. R. R., 98 Ind. 522, 22 Am. & Eng R. R. Cas. 360; Kline v. C. P. R. R., 37 Cal. 400; Schultz v. T. A. R. R., 89 N. Y. 242, 19 Am. & Eng. R. R. Cas. 579 ; N. Y. C. & H. R. R. R. v. Hoffman, 87 N. Y. 25, 4 Am. & Eng. R. R. Cas. 537 ; Benton v. C. R. I. & P. R. R , 55 Iowa 496. 1 Johnson v C. R. I. & P. Ry., 58 Iowa 348, 8 Am. & Eng. R. R. Cas. 206. a Bayley v. M S & L. Ry., L. R. 7, C. P. 415, 8 Id. 148 ; P. R. R. v. Van- diver, 42 Penna. St. 365 ; I. B. & W. Ry v. Burdge, 94 Ind. 46, 18 Am. & Eng. R. R. Cas. 192 ; Ramsden v. B. & A. R. R., 104 Mass. 117 ; Pleenrich v. P. P. C. Co., 20 Fed. Rep. 100, 18 Am. & Eng. R. R. Cas. 379 ; W. St. L. & P. Ry. v. Rector, 104 111. 296, 9 Am. & Eng. R. R. Cas. 264. 8 T. C. Co. v. Heeraan, 86 Penna. St 418 ; Cauley v. P. C. & St. L. Ry., 98 Id. 498 ; P. A. & M. P. Ry. v. Donahue, 70 Id. 119 ; Penna. Co. v. Toomey, 91 Id. 256; Manon v. C. R. I. & P. Ry., 59 Iowa 428, 8 Am. & Eng. R. R. Cas. 177. 110 LIABILITY FOR TRESPASSES. removal, and in the other ease from the unnecessary violence with which that removal is effected. 112. A railway is also liable for the acts of its ser- vants in the exercise of statutory power conferred upon the railway to arrest persons attempting to defraud them. 1 It is held in some cases, that where the railway has no power under its charter to make an arrest, the railway is not liable, for there cannot be an implied authority to its servants to do that which the corporation has no charter power to do. 2 In other cases, 3 it is held that railways are liable for wrongful arrests made by their servants in the mistaken exercise of the authority vested in them by the railway, and that in such a case it con- stitutes no defence to the railway that its agent in doing the act did that which the railway was not authorized by its charter to do, and that which the railway had not empowered its servant to do. Upon the same principle a railway was held liable 4 for the act of its servant in seizing a passenger's luggage to enforce payment of his fire. The doctrine of the last-mentioned class of cases seems to be sound, for, if the person who does the wrongful act be, in fact, a servant of the railway, and if the act be done in furtherance of the general purposes of the railway, and not to accomplish an independent personal purpose on the part of the servant, the railway ought to be held liable therefor, on the ground of an implied delegation to the servant of authority for the 1 E. C. Ry. v. Broom, 6 Ex. 314 ; Chilton v. L. & C. Ry., 16 M. & W. 212 ; Roe v. B. L. & C. J. Ry., 7 Ex. 3G ; Savaignac v. Roome, 6 T. R. 125 ; Moore v. N. Ry., L. R. 8 Q. B. 36 ; Bank of New South Wales v. Owston, 4 App. Cas. 270 ; Edwards v. L. & N. W. Ry., L. R. 5 C. P. 445 ; Allen v. L. & S. W. Ry., L. R. 6 Q. B. 65 ; Gofi v. G. N. Ry., 3 E. & E. 672, 107 E. C. L. 2 Poulton v. L. & S. W. Ry., L. R. 2 Q. B. 534 ; Emerson v. N. N. Co., 2 Ont. (Can.) 528. 3 Lynch v. M. E. Ry., 90 N. Y. 77, 12 Am. & Eng. R. R. Cas. 119 ; E. & T. II. R. R. v. McKee, 99 Ind. 519, 22 Am. & Eng. R. R. Cas. 366. * Ramsden v. B. & A. R. R., 104 Mass. 117. LIABILITY FOR SERVANTS' ACTS. Ill performance of the particular act, and the doctrine of ultra vires cannot be held to negative the implication of such a delegation, unless, in the words of Kelly, C. B., in his dissenting judgment in Mill v. Hawker, 1 corpora- tions are "not to be liable for any tort at all committed or authorized by them." 113. A railway is liable for an assault committed by a servant under the orders of an executive officer of the company, thus : where a servant of one railway was wounded by a pistol shot fired by some one of the ser- vants of another railway, acting under the orders of the vice-president and general manager of their line, in an attempt to take forcible possession of the line of the first-mentioned railway, the last-mentioned railway was held liable in damages to the injured person. 2 114. A railway is also liable for the act of its servant in attempting to bribe an adverse witness, the servant being engaged to prepare for trial actions against the company, and the fact of such attempted bribery being admissible in evidence against the company on the trial of an action for injuries to the person, in which action the person sought to be bribed was a witness. 3 115. Railways are not liable for a mistaken exercise of judgment upon the part of their servants in an emer- gency ; 4 nor, for a failure upon the part of their ser- vants to act with the utmost possible promptitude when the circumstances are such as to afford no time for deliberation ; thus, 5 where a passenger railway car was approaching a switch, and the attention of the driver was necessarily directed to the switch, and a boy 1 L. R. 9 Ex. 309, 10 Id. 92. 2 D. & R. G. Ry. v. Harris, New Mex. , 15 Am. & Eng. R. R. Cas. 142. 8 C. C. Ry. v. McMahon, 103 111. 485, 8 Am. & Eng. R. R. Cas. G8. * Banks v. II. St. Ry., 136 Mass. 485, 19 Am. & Eng. R. R. Cas. 139 ; Bell v. H. & St. J. R. R, 72 Mo. 50, 4 Am. & Eng. R. R. Cas. 580. 6 H. M. & F. P. Ry. v. Kelley, 102 Fenna. St. 115. 112 LIABILITY FOR WILFUL ACTS. jumped on the front platform, remained there about thirty seconds, and in jumping off was injured, it was held that there was no negligence on the part of the defendant, Green, J., saying : " where the sole basis of liability is the omission to perform a certain duty suddenly and unexpectedly arising, we think there ought to be at least a consciousness of the facts which raise the duty on the part of the person who is charged with its performance, and a reasonable opportunity to discharge it." 1 VI. THE LIABILITY OF THE RAILWAY FOR ITS SER- VANTS' WILFUL ACTS. A railway is not liable for the wilful act of its servant beyond the scope of that servant's general authority, unless it be proven that there was an antecedent special authorization or subsequent ratifica- tion. 116. A railway is not liable for the wilful act of its servant beyond the scope of that servant's general authority, unless it can be proven that there was an antecedent special authorization or a subsequent ratifi- cation. 2 The per curiam judgment of the King's Bench 1 Cotton v. Wood, 8 C. B. N. S. 568, 98 E. C. L. ; Brown v. French, 14 Weekly Notes of Cases (Penna.) 412; Gumz v. C. M. & St. P. Ry., 52 Wise. 672, 5 Am. & Eng. R. R. Cas. 583 ; Maschek v. St. L. R. R., 71 Mo. 276, 2 Am. & Eng. R. R. Cas. 38 ; Dunleavy v. C, R. T. & P. Ry., Iowa , 21 Am. & Eng. R. R. Cas. 542 ; Brown v. C. & B. St. Ry., 49 Mich. 153, 8 Am. & Eng. R. R. Cas. 385 ; C. & N. W. Ry. v. Smith, 46 Mich. 504, 4 Am. & Eng. R. R. Cas. 535 ; Jenkins v. C. M. & St. P. Ry., 41 Wise. 112. 2 McManus v. Crickett, 1 East. 106; Croft v. Alison, 4 B. & Aid. 590, 6 E. C. L.; Lawson v. Bank of London, 18 C. B. 84, 86 E. C. L.; Edwards v. L. & N. Ry., L. R. 5 C. P. 445 ; Walker v. S. E. Ry., L. R. 5 C. P. 640 ; E. C. Ry. v. Broom, 6 Ex. 314 ; Roe v. B. L. & C. J. Ry., 7 Id. 36 ; Smith v. B. & S. Gas Light Co., 1 A. & E. 526, 28 E. C. L. ; Hays v. H. G. N. R. R., 46 Tex. 280 ; G. H. & S. A. R. R. v. Donahoe, 56 Id. 162, 9 Am. & Eng. R. R. Cas. 287 ; Isaacs v. T. A. R. R., 47 N. Y. 122 ; R. T. Co. v. Vanderbilt, 2 N. Y. 479 ; C. & N. W. Ry. v. Bayfield, 37 Mich. 205 ; I. C. R. R. v. Downey, 18 111. 259. LIABILITY FOE WILFUL ACTS. 113 in Croft v. Alison, 1 states the distinction thus: "if a servant driving a carriage, in order to effect some pur- pose of his own, wantonly strikes the horses of another person, and produce an accident, the master will not be liable. But if, in order to perform his master's orders, he strike, but injudiciously, and in order to extricate himself from a difficulty, that will be negligent and careless conduct for which the master will be liable, being an act done in pursuance of the servant's employ- ment." 117. Of course the railway is liable for a wilful assault by a servant beyond the scope of his employ- ment, if it subsequently ratifies the act. Proof of rati- fication can be deduced from the fact that the railway, with knowledge of its servant's commission of an un- authorized assault on a passenger, has retained him in its service and promoted him.' J But 3 it has been held that a promise by a secretary of a railway to look into the matter, and the subsequent offer of a pecuniary com- promise of the plaintiff's claim, was not evidence of a ratification by the railway of the unauthorized act of a servant in arresting the plaintiff for non-payment of fare;, and the fact that the attorney of the railway attended before a magistrate at the hearing of a charge against the plaintiff, was held not to be a ratification of the un- authorized act of a servant in taking the plaintiff into custody and carrying him before a magistrate. 4 118. It is, however, laid down by some authorities that the railway is liable for wilful assaults by its servants, even beyond the line of their duty, as, for instance, for 1 4 B. & Aid. 590, 6 E. C. L. 2 Bass v. C. & N. W. By., 39 Wise. 636, 42 Id. 654; Gasway v. A. & W. P Ry., 58 Ga. 216. 3 Roe v. B. L. & C. J. Ry., 7 Ex. 36. 4 E. C. Ry. v. Broom, 6 Ex. 314. 8 114 LIABILITY FOR WILFUL ACTS. the act of a conductor in kissing a female passenger ; x for the act of a brakeman, who, when accused of theft by a passenger, struck the passenger in the face ; 2 for the act of a conductor in calling a passenger out of a train at a way station and beating him ; 3 for the act of a brakeman in throwing water on a passenger while standing in the doorway of a car ; 4 for the act of a con- ductor in pointing a loaded revolver at a passenger, and forcing him to leap from a moving train ; 5 for the act of a conductor in wilfully insulting and assaulting a passenger, when the conductor was not engaged in the performance of his duties ; 6 for the act of an engine- driver in sounding the whistle of his engine unneces- sarily, and with the intention of frightening horses ; 7 for insulting and offensive epithets 8 applied by a railway servant to a passenger. 9 119. On the other hand, it has been held that a rail- way is not liable for the act of a servant, who, having been placed at a car door to resist the entrance of pas- sengers without tickets, assaulted a passenger who at- tempted to force an entrance; 10 nor for the act of a 1 Craker v. C. & N. W. Ry., 36 Wise. 657. 2 C k E. R. R. v. Flexman, 103 111. 546, 8 Am. & Eng. R. R. Cas. 354. 3 Peeples v. B. & A. R. R., 60 Ga. 281.. 4 T. H. & I. R. R. v. Jackson, 81 Ind. 19, 6 Am. & Eng. R. R. Cas. 178. 5 Gallena v. II. S. R. R., 13 Fed. Rep. 116. 6 Goddard v. G. T. Ry., 57 Me. 202 ; Hanson v. E. & N. R. R., 62 Id. 84; Maleck v. T. G. R. R., 57 Mo. 18 ; Sherley v. Billings, 8 Bush 147. 7 C. B. & Q. R. R. v. Dickson, 63 111. 151, 7 Am. Ry. Rep. 45. 8 Bryant v. C, R. I. & P. Ry., 63 Iowa 464, 16 Am. & Eng. R. R. Cas. 335. 9 See, generally, Pendleton v. Kinsley, 3 Clif. 416 ; Sherley v. Billings, 8 Bush 147; Chamberlain v. Chandler, 3 Mason 242; Bryant v. Rich, 106 Mass. 180, 202; Kieto v. Clark, 1 Clif. 145 ; B. & O. R. R. v. Blocher, 27 Md. 277 ; Stewart v. B. & C. Ry., 90 N. Y. 588, 12 Am. & Eng. R. R. Cas. 127, overruling Isaacs v. Third Ave. R. R., 47 N. Y. 122 ; I. & G. N. Ry. v. Kentle, Tex. , 16 Am. & Eng. R.R. Cas. 337 ; Jackson v. Second Ave. R. R, 47 N. Y. 275 ; Rounds v. D., L. & W. R. R., 64 Id. 137 ; Day v. B. C. R. R., 76 Id. 593 ; Mc- Kinley v. C. & N. W. Ry., 44 Iowa 314 ; Gasway v. A. & W. P. R. R, 58 Ga. 216. 10 Priest v. H. R. R. R., 65 N. Y. 589. LIABILITY FOR WILFUL ACTS. 115 servant in striking with a hatchet a passenger who had provoked a quarrel with him, 1 nor for the act of a fire- man in inducing a boy to assist in watering an engine, 2 nor for the act of a brakeman in ordering a boy to move a load of lumber on a car in motion, 3 nor for the act of a brakeman in throwing a stone at a boy trespassing on a train, 4 nor for the act of a conductor in forcing a tres- passing boy to jump from a moving car, 5 nor for the act of a driver of a street car in striking a boy and knock- ing him off the car, 6 nor for the act of a conductor in pushing a trespasser off a moving car, 7 nor for the act of an engine-driver in purposely driving his engine over cattle on the line, 8 nor for the act of the driver of a street car in wilfully running his car into a wagon, 9 nor for the act of a brakeman in abducting a boy from his home and carrying him away on a train. 10 120. The reported actions against railways for wilful assaults committed by their servants may be classified in three categories : first, those in which the person in- jured was not a passenger of the railway ; second, those in which the person injured was a passenger, and the assault was committed by the railway's servant at a time when he was engaged in the performance of his duty to the railway, as, for instance, when collecting the passen- ger's fare, or when preventing the passenger from enter- ing, or remaining, in a particular car; and third, those 1 L. M. R. R. v. Wetmore, 19 Ohio St. 110. 1 Flower v. P. R. R., 69 Penna. St. 210. 3 Sherman v. II. & St. J. R. R., 72 Mo. 62, 4 Am. & Eng. R. R. Cas. 589. * Towanda Coal Co. v. 1 Iceman, 86 Penna. St. 418. i Cauley v. P. C & St. L. Ry., 98 Penna. St. 498. 6 P. A & M. P. Ry. v. Donahue, 70 Penna. St. 119. 7 Penna. Co. v. Toomey, 91 Penna. St. 256 ; Marion v. C, R. I. & P. Ry., 59 Iowa 428, 8 Am. & Eng. R. R. Cas. 177. 8 I. C. R. R. v. Downey, 18 III. 259. 9 Wood o. D. C. S. Ry., 52 Mich. 402, 19 Am. & Eng. R. R. Cas. 129. w Gilliam v. S. & N. A. R. R., 70 Ala. 268, 15 Am. & Eng. P.. R. Cas. 138. 116 LIABILITY FOR WILFUL ACTS. in which the person injured was a passenger of the rail- way, and the assault committed by the servant was not contemporaneous with that servant's performance of his duty to the railway. In each category the decisions are conflicting. In those of the first category, the railway is generally held not to be liable, and in those of the second and third categories, the railway is generally held to be liable. A careful consideration of this ques- tion upon principle will satisfy any one that the true rule of decision in every case, where it is sought to hold a railway responsible for the act of a servant causing injury to a person, whether that person be or be not a passenger, or whatever be the relation in which he stands to the railway, is to be found in the answer to the question, was the servant in doing the act perform- ing, however negligently and however wrongfully, his duty to the railway, or was he accomplishing some pur- pose of his own, which had no necessary connection with the performance of his duty to the railway? If the former, the railway is liable ; if the latter, the railway is not liable. In Johnson v. C, R. I. & P. Ry., 1 where the railway was held liable for the act of its station master in ejecting the plaintiff from its station house rightfully, but with unnecessary violence, Rothrock, J., thus states the rule : " the true test by which to deter- mine the liability of the master, or employer, for the negligent or wrongful acts of the servant, or employe, in all this class of. cases is, was the wrongful or negligent act done in the course and scope of the employment of the servant, or agent ? If it was, the employer is liable. But if the employe does any act out of his employment * * the employer is not liable. For example, if an agent, conductor, or other employe should assault a loafer in a waiting-room in a personal quarrel, having 1 58 Iowa 348, 8 Am. & Eng. R. R. Gas. 206. LIABILITY FOR WILFUL ACTS. 117 no relation to his employment, the company would not be liable in damages." 121. Many of the cases hold that the railway is liable to its passengers for unauthorized and wilful assaults by its servants when it would not be liable to persons other than passengers for such assaults. The ground of de- cision in such cases is thus stated by Tracy, J.: 1 " By the defendant's contract with the plaintiff, it had undertaken to carry him safely, and to treat him respectfully ; and while a common carrier does not undertake to insure from injury against every possible danger, it does under- take to protect the passenger against any injury arising from the neo;lio;ence or wilful misconduct of its servants while engaged in performing a duty which a carrier owes to the passenger." The fallacy in this reasoning can be readily pointed out. It is based on a misappre- hension of the railway's implied obligation to its pas- sengers. The railway does not insure their safe transportation. It does not warrant to them the security of its line, nor the roadworthiness of its carriages, nor the capability of its servants. The duty of the railway to its passenger is performed to its full measure when the railway exercises the highest possible care in the construction and operation of its line, machinery, and appliances, and in the selection, organization, and dis- cipline of its servants. It is liable to its passengers only for negligence, and it is not negligence upon its part, when a servant who has been carefully selected, and for whose guidance in the performance of his duties judicious regulations have been prescribed, but who is nevertheless human and mortal, and, therefore, to some extent, at least, both fallible and self-willed, does that, in the exercise of his own volition and to serve his own purposes, which the railway has not expressly nor im- 1 Stewart v. B. & C. E. E., 90 N. Y. 588, 12 Am. & Eng. E. E. Cas. 127. 118 LIABILITY FOR WILFUL ACTS. pliedly authorized him to do on its behalf. To hold the railway liable in such a case is not consistent, either with the principles upon which rests the responsibility of railways to their passengers for injuries caused by a failure of their means of transportation, or with those other rules of law of wider application which determine the liability of principals for the acts of their agents. It does not affect the question to argue, as Mr. H. G. Wood has argued, 1 that because a common carrier of goods is absolutely liable for its servants' loss of or wanton injury to the goods which it has contracted to carry, that, therefore, "it would be a singular rule and an absurd one, that did not hold the carriers of pas- sengers" responsible for injuries wilfully inflicted by its servants upon those passengers. It is only necessary, in reply to this view, to refer to the judgment of Mon- tague Smith, J., in Readhead v. Midland Ry., 2 where he shows the essential distinction between the implied obligations of carriers of goods and of passengers. It must be remembered that science has not yet enabled railways to manufacture their servants to order. They must take as those servants sentient human beings, each of whom has an individuality which cannot be altogether repressed. All that the railway can do in the exercise of the highest possible care is to prudently select and train its servants, and to make wise regulations for their government, and when it has done that it is a plain injustice to hold the railway responsible for its servant's wilful and unauthorized act. 1 Law of Master and Servant 648 et seq., 2 Law of Railroads 1196. 2 L. R. 4 Q. B. 379. INDEPENDENT CONTE ACTORS. 119 CHAPTER III. THE LIABILITY OF EAILWAYS FOE THE ACTS OF INDEPEN- DENT CONTRACTORS. I. The general rule of liability for the negligence of contractors. II. The liability for a wrongful act done in pursuance of a contract. III. The liability for a contractor's non performance of a duty incumbent on the railway. IV. The railway's obligation to anticipate negligence on the part of its contractor. I. THE GENERAL EULE OF LIABILITY FOE THE NEGLI- GENCE OF CONTRACTORS. A railway is not liable for the negligence of an independent contractor or of his servants in the course of the prosecution of a lawful work. 122. It often happens, in the course of railway opera- tions, that independent contractors who are not servants of the railway are engaged pro hac vice to perform some specified work of construction, alteration, or repair. The earlier cases held him who had delegated to an- other the performance of any act, or who had contracted with that other for its performance, liable not only for all the acts done by the contractor in the exercise of the delegated authority and in the performance of the con- tract, but also liable for the negligence of the contrac- tor, and of the contractor's servants. Thus, in Bush v. Stein man, 1 the defendant being the owner of a house, contracted with a surveyor to repair it, and the surveyor sublet the contract to a carpenter, who employed a brick- layer, who contracted with a lime-burner for lime, which the lime-burner's servant placed on the highway in 1 1 Bos. & Tul. 404. 120 THE OLD RULE OF LIABILITY. front of the house, and the plaintiff, having been in- jured by reason of his carriage being overturned on the lime, brought his action and recovered against the de- fendant, Rooke, J., saying, " the person from whom the whole authority is originally derived, is the person who ought to be answerable, and great inconvenience would follow if it were otherwise." The same view is taken in two other cases, 1 but the doctrine of these cases has long since been overruled. In Laugher v. Pointer, 2 and in Quarraan v. Bennett, 3 where the question was as to lia- bility for the negligence of an independent contractor where the contract had reference to personal property, Bush v. Steinman was sought to be distinguished upon the ground that the contract in question in that case re- lated to fixed property, and that therefore the owner was to be held liable, but this shadowy and unsubstan- tial distinction was rejected and finally overthrown in Keedie v. L. & N. W. By. and Hobbitt v. Same, 4 in which cases the plaintiffs sued under Lord Campbell's Act, as widows of persons who were killed while passing on a highway under a viaduct in course of construction as part of the defendant's line, the accident having re- sulted from the negligence of the workmen employed by a contractor who had undertaken to build the via- duct. The jury having found for the plaintiffs, a rule for a new trial was made absolute, Bolfe, B., saying, " the case of Bush v. Steinman, where the owner of a house was held liable for the act of a servant of a sub- contractor, acting under a builder employed by the owner, was a case of fixed real property. That case was strongly pressed in argument in support of the liability of the defendants, both in Laugher v. Pointer and 1 Sly v. Edgley, 6 Esp. 6, and in Matthews v. W. L. Waterworks Co., 3 Camp. 403. 2 5 B. & C. 547, 12 E. C. L. 3 6 M. & W. 499. * 4 Ex. 243. INDEPENDENT CONTRACTORS. 121 Quarraan v. Bennett; and as the circumstances of those two cases were such as not to make it necessary to over- rule Bush v. Steinman, if any distinction in point of law did exist, in cases like the present, between fixed property and ordinary movable chattels, it was right to notice the point. But, on full consideration, we have come to the conclusion that there is no such distinction, unless, perhaps, in cases where the act complained of is such as to amount to a nuisance ; and in fact that, accord- ing to the modern decisions, Bush v. Steinman must be laken not to be law, or, at all events, that it cannot be supported on the ground on which the judgment of the court proceeded. * * * Mr. Justice Littledale in his very able judgment in Laugher v. Pointer, observed that the law does not recognize a several liability in two principals who are unconnected. If they are jointly liable, you may sue either, but you cannot have two separately liable. This doctrine is one of general ap- plication, irrespective of the nature of the employment ; and applying the principle to the present case, it would be impossible to hold the present defendants liable, without, at the same time, deciding that the contractors are not liable, which it would be impossible to be con- tended. It remains only to be observed that in none of the more modern cases has the alleged distinction be- tween real and personal property been admitted. Our attention was directed during the argument to the pro- visions of the contract, whereby the defendants had the power of insisting on the removal of careless or incom- petent workmen, and so it was contended they must be responsible for their non-removal. But this power of removal does not seem to us to vary the case. The workman is still the servant of the contractor only, and the fact that the defendants might have insisted on his removal if they thought him careless or unskillful, did 122 MODERN RULE OF LIABILITY. not make him their servant." In Painter v. Pittsburgh, 1 Strong, J., said that Bush v. Steinman "long since ceased to be regarded as a correct enunciation of the law in England, and both its reasoning and authority are denied." 2 123. The modern doctrine is that if an independent contractor is employed to do a lawful act, the employer not reserving a control over the manner of its perform- ance, and in the course of the work he or his servant commits some casual act of negligence, the employer is not answerable. 3 By force of these principles, a rail- way is not liable for injuries done in the operation of its line while in process of construction by a contractor ; 4 but where a passenger is injured while being trans- 1 46 Penna. St. 213, 221. 2 See also Hilliard v. Richardson, 3 Gray 349 ; DeForrest v. Wright, 2 Mich. 368. 3 Pickard v. Smith, 10 C. B. N. S. 480, 100 E. C. L.; Overton v. Freeman, 11 C. B. 867, 73 E. C. L.; Knight v. Fox 5 Ex. 721 ; Allen v. Hayward, 7 Q. B. 960, 53 E. C. L. ; Steel v. S. E. Ry., 16 C. B. 550, 81 E. C. L. ; Peachey v. Rowland, 13 C. B. 181, 76 E. C. L.; Brown v. A. C. S. & M. Co., 3 H & C.511; Pearson v. Cox, 2 C. P. D. 369; Rapson v. Cubitt, 9 M. & W. 710; Hilliard r. Richardson, 3 Gray 349 ; Scammon v. Chicago, 25 111. 424 ; School District of Erie v. Fuess, 98 Penna. St. 600 ; Smith v. Simmons, 13 Weekly Notes of Cases (Penna.) 242 ; Allen v. Willard, 57 Penna. St. 374 ; Wray v. Evans, 80 Id. 102 ; Milligan v. Wedge, 12 A. & E. 737, 40 E. C. L. ; Murray v. Currie, L. R. 6 C. P. 24 ; Rourke v. White Moss Colliery Co., L. R. 2 C. P. D. 205 ; Hall v. Smith, 2 Ring. 156 ; as explained by Alderson, B., in Scott v. Mayor of Man- chester, 1 II. & N. 59 ; (Wiggett v. Fox, 11 Ex. 832, as explained by Channell, B., in Abraham v. Reynolds, 5 H. & N. 143, and dissented from by Cockburn, C. J., in Rourke v. Colliery Co., 2 C P. D. 205 ;) Painter v. Pittsburgh, 46 Penna. St. 213 ; Ardesco Oil Co. v. Gilson, 63 Id. 146 ; Erie v. Caulkins, 85 Id. 247 ; Borough of Susquehanna Depot v. Simmons, 17 Weekly Notes of Cases (Penna.) 362 ; Reed v. Allegheny, 79 Pa. St. 300 ; Barry v. St. Louis, 17 Mo. 121 ; Blake v. Ferris, 5 N. Y. 58 ; N. O. & N. E. R. R. v. Reese, 61 Miss. 581 ; Hughes v. C. & S. Ry., 15 Am. & Eng. R. R. Cas. 100, and note, Ohio St.; Lin- ton v. Smith, 8 Gray 147 ; DeForrest v. Wright, 2 Mich. 368 ; McCafferty v. S. D. & P. M. R. R., 61 N. Y. 178 ; Boswell v. Laird, 8 Cal. 469 ; Clark v. Fry, 8 Ohio St. 358 ; Hofnagle v. N. Y. C. & II. R. R. R , 55 N. Y. 608 ; King v. N. Y. C. & II. R. R. R-, 66 Id. 181 ; Hexamer v. Webb, 101 Id. 377. 4 K. C. Ry. v. Fitzsimmons, 18 Kans. 34, 15 Am. Ry. Rep. 220; Cunning- ham v. I. R. R., 51 Tex. 503; U. P. R. R. v. Hause, 1 Wyoming 27. INDEPENDENT CONTRACTORS. 123 ported over a line which is in process of construction by contractors, and which has not been formally re- ceived from the contractors, but the train is manned by servants of the railway, and the passenger's injuries are caused by the negligence of those servants, the railway must be held liable therefor. 1 Where the railway, having contracted for the performance of a work, has reserved to itself the control both of the result and of the means by which that result is to be accomplished, it is liable for the negli- gence of the contractor and his servants. 124. Where the railway has contracted for the per- formance of a work, aud has reserved to itself control both of the result and of the means by which that re- sult is to be accomplished, the contractor and his ser- vants are the servants of the railway, and the railway is held liable as master for their acts. 2 In Randleson v. Murray, 3 the defendant was a warehouseman who engaged a master porter to remove a barrel from his warehouse, the master porter employing his own work- men and tackle, and from the negligence of those men the tackle failed, the barrel fell, and the plaintiff was injured. The case as reported does not distinctly show whether the master porter was engaged merely for the particular job or whether he was engaged by the day or week for the removal of other barrels. Coleridge, J., directed the jury to find a verdict for the plaintiff if they considered there had been negligence in the use of the tackle, and a verdict having passed for the plain- tiff, a rule for a new trial was refused, Denman, C J., 1 Burton v. G II. & S. A. R. R., Gl Tex. 526, 21 Am. & Eng. R. R. Cas. 218. 2 8 A. & E 109, 35 E. C. L. See also Milligan v. Wedge, 12 A. & E. 737, 40 E. C. L.; Sadler v. Ilenlock, 4 El. & Bl 570, 82 E. C. L. ; Blake v. Thirst, 2 II. & < :. 20 ; Stone v. Utica, 17 N. Y. 104 ; N. O. M. & C. R. R. v. Harming, 15 Wall. 649. 3 8 A. & E. 109, 35 E. C. L. 124 CONTRACTORS WHEN AGENTS. saying : " Had the jury in this case been asked whether the porters, whose negligence occasioned the accident, were the servants of the defendant, there can be no doubt they would have found in the affirmative," and Littledale, J., adding : " It seems to me to make no dif- ference whether the persons whose negligence occasions the injury be the servants of the defendant, paid by daily wages, or be brought to the warehouse by a person employed by the defendant. The latter frequently occurs in a large place like Liverpool, where many per- sons exercise the occupation of a master porter. But the law is the same in each case." In the later case of Milligan v. Wedge, 1 where the defendant, a butcher, having bought a bullock, had engaged a licensed drover to drive it from the Smithfield Market, and the drover employed a boy by whose negligence the bullock escaped and injured the plaintiff, the jury having found specially that the boy was not defendant's servant, but having found a verdict for the plaintiff on the general issue, Denman, C. J., said with regard to Randleson v. Murray : " The work was in effect done by the defendant himself at his own warehouse. If he chose instead of keeping a porter to hire one only for the day, he did not thereby cease to be liable for injury done by the porter while under his control. Here it does not appear that the defendant attended the drover or his servant, and the mischief was done, not in the course of the butcher's business, but of the drover's." And Williams, J., added : " I agree with the decision of Randleson v. Murray, for the warehouseman's servant, whether daily or weekly, is equally under the control of the warehouseman ;" and Coleridge, J., said : " The true test is to ascertain the relation between the party charged and the party actu- ally doing the injury. Unless the relation of master 1 12 A. & E. 73 7 , 40 E. C. L. INDEPENDENT CONTRACTORS. 125 and servant exist between them, the act of the one creates no liability in the other." Therefore, reading Randleson v. Murray as it is explained in Milligan v. Wedge, it is not inconsistent with the later cases. Under the doctrine of this section, two recent cases have been decided : thus, where a railway company contracted with an individual to take entire charge of its freight business at its terminus, under the supervision of the railway superintendent, the railway was held liable to a person injured by the negligent handling of a train by the contractor's servants, 1 and where a railway per- mitted a contractor to exercise its franchise of running cars drawn by steam over its line, 2 the railway was held liable for injuries done by the negligence of the con- tractor's servants. The reservation to the railway of a limited control over the manner of . doing the work will not render the raihvay liable for the contractor's negligence. 125. The fact that the contract requires the contractor to do the work in accordance with the plans, specifica- tions, and instructions furnished by the railway will not render the railway liable, 3 nor that the contract reserves to the railway power to insist on the removal of careless or incompetent workmen employed by the contractor; 4 nor that the contract reserves to the railway power to direct changes in the time and manner of doing the work ; 5 nor that the contract reserves to the railway the right to direct as to the quantity of work to be done, or as to the condition of the work when comjneted ; 6 nor 1 Speed v. A. & P. R. R., 71 Mo. 303, 2 Am. & Eng. R. R. Cas. 77. 1 M. & A. R. R. v. Mayes, 49 Ga. 355. 8 Hunt v. P. R. R., 51 Penna. St. 475 ; Smith v. Simmons, 103 Id. 32. 4 Reedie v. L. & X. W. Ry., 4 Ex. 243. 5 Erie v. Caulkins, 85 Penna. St. 247. • Hughes v. C. & S. Ry., 39 Ohio St. 461, 15 Am. & Eng. R. R. Cas. 100. 126 WRONGS IN PURSUANCE OF CONTRACT. that the contractor is paid by the day ; l nor that the contractor's servant whose negligence caused the injury is paid by the railway while directed and controlled in his action by the contractor. 2 n. THE LIABILITY FOR A WRONGFUL ACT DONE IN PURSUANCE OF THE CONTRACT. The railway will be liable where the injury is done by a wrongful act performed by the contractor in the execution of his contract. 126. The doctrine of the independent contractor will not exempt a railway from liability where the act which occasions the injury is one which the contractor was en- gaged to do, and which he has done in pursuance of his contract, and where the act in itself is a wrong. In such cases the employer is, of course, liable, for the contractor in fulfilling his contract is the employer's agent. Thus in Hole v. S. & S. Ey., 3 the defendant, being authorized by Act of Parliament to construct a railway draw-bridge across a navigable river, had employed a contractor, by whose negligence in the construction of the bridge the bridge, when completed, could not be opened, and the plaintiff's vessel was prevented from navigating the river. After verdict for the plaintiff a rule for a new trial was discharged, Pollock, C. B., saying: "This is a case in which the maxim ' qui facit per alium facit per se } applies. Where a person is authorized by an Act of Parliament or bound by contract to do a particular work he cannot avoid responsibility by contracting with an- other person to do that work. Where the act complained of is purely collateral and arises incidentally in the course of the performance of the work, the employer is not lia- 1 Harrison v. Collins, 86 Penna. St. 153; Hexamer v. Webb, 101 N. Y. 377. * Rourke v. White Moss Colliery Co., I, R. 2 C. P. D. 205. 8 6 II. & N. 488. INDEPENDENT CONTRACTORS. 127 ble, because lie never authorized the act — the remedy is against the person who did it. * * * But when the contractor is employed to do a particular act, the doing of which causes mischief, another doctrine applies. Here the legislature employed the company to build the bridge; in building that bridge the contractor created an obstruction to the navigation, and for that the company are liable." 1 III. THE LIABILITY FOR THE CONTRACTOR'S NON-PER- FORMANCE OF A DUTY INCUMBENT ON THE RAILWAY. The railway is liable where the injury is done by the contractor's non- performance of a duty whose performance was incumbent upon the railway. 127. So also the employer is liable where the contractor, having been entrusted with the performance of a duty incumbent upon the employer, neglects its fulfillment, whereby an injury is occasioned. Thus in Pickard v. Smith, 2 Williams, J., after stating the general rule of non-liability for the negligence of an independent con- tractor, added : " That rule, however, is inapplicable to cases in which the act which occasions the injury is one which the contractor was employed to do ; nor by a parity of reasoning to cases in which the contractor, having been entrusted with the performance of a duty incumbent upon the employer, neglects its fulfillment, whereby an injury is occasioned. * * * * * If the per- formance of the duty be omitted, the fact of his having entrusted it to a person who also neglected it, furnishes 1 See also Ellis v. Sheffield G. C. Co., 2 E. & B. 767, 75 E. C. L. ; Blake v. Thirst, 2 H. & C. 20; Pickard v. Smith, 10 C. B. N. S. 470, 100 E. C. L. ; Tarry r. Ashton, 1 Q. B. D. 314; Chicago v. Robbins, 2 Black 418; Robbins v. Chicago, 4 Wall. 657 ; Clark v. Fry, 8 Ohio St. 359 ; Lowell v. B. & L. R. R., 23 Pick. 24; St. P. Water Co. v. Ware, 16 Wall. 566 ; R. R. I. & St. L. R. R. v. Wells, 66 111. 321 ; C. &. St. L. R. R. v. Woosley, 85 Id. 370. » 10 C. B. N. S. 483, 100 E. C. L. 128 NON-FERFORMANCE OF EMPLOYER'S DUTY. no excuse either in good sense or law." And in Bower v. Peate, 1 the plaintiff and the defendant being owners of adjoining houses, and the plaintiff being entitled to lateral support for his house from the defendant's soil, the defendant employed a contractor to pull down his house, excavate the cellar, and rebuild, the contractor stipulating to underpin the plaintiffs house and make good any damages. The plaintiff's house having been injured by the negligence of the contractor's servant, it was held that the defendant was liable, Cockburn, C. J., saying : "A man who orders a work to be executed, from which, in the natural course of things, injurious conse- quences to his neighbour must be expected to arise unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing some one else, whether it be the contractor employed to do the work from which the danger arises, or some inde- pendent person, to do what is necessary to prevent the act he has ordered to be done from becoming wrongful. There is an obvious difference between committing work to a contractor, from which, if properly done, no injuri- ous consequences can arise, and handing over to him work to be done from which mischievous consequences will arise unless preventive measures are adopted. While it may be just to hold the party authorizing the work in the former case exempt from liability for injury, resulting from negligence which he had no reason to anticipate, there is, on the other hand, good ground for holding him liable for injury caused by an act certain to be attended with injurious consequences if such con- sequences are not, in fact, prevented, no matter through whose default the omission to take the necessary meas- 1 1 Q. B. D. 326. INDEPENDENT CONTRACTORS. 129 ures for such prevention may arise." Bower v. Peate is recognized and approved by the House of Lords in Dalton v. Angus. 1 rv. the railway's obligation as to the anticipation OF NEGLIGENCE ON THE PART OF ITS CONTRACTOR. The railway is not negligent if it does not anticipate and guard against the negligence of a carefully selected contractor, to whom it has en- trusted the prosecution of a lawful work. 128. A railway is not bound to anticipate that a care- fully selected and experienced contractor will do his work negligently, and, therefore, the railway is not liable if it fails to take precautions against possible negligence on the part of the contractor or of his servants ; thus in Daniels v. M. Ry., 2 Lord Westbury, with that clear ap- preciation of the practical effects of rules of law which is always to be found in the judgments of the House of Lords, said: "The ordinary business of life could not go on if we had not a right to rely upon things being properly done when we have committed and entrusted them to persons whose duty it is to do things of that nature, and who are selected for the purpose with j3ru- dence and care, as being experienced in the matter, and are held responsible for the execution of the work. Un- doubtedly it would create confusion in all things if you were to say that the man who employs others for the execution of such a work, or the man who is a party to the employment, has no right whatever to believe that the thing will be done carefully and well, having selected, with all prudence, proper persons to perforin the work, but that he is still under an obligation to do that which, 1 6 App. Cas. 740. See also Roman v. Stanley, 66 Penna. St. 464 ; The M. D. Trustees v. Gibbs, L. R. 1 H. L. 116. 2 L. R. 5 H. L. 61. 9 130 ANTICIPATION OF NEGLIGENCE. to him, in many cases, would be impossible, namely, to interpose from time to time in order to ascertain that that was done correctly and properly, the business of doing which he had rightfully and properly committed to other persons." On the other hand, in V. C. It. R. v. Sanger, 1 the railway was held liable to a passenger who was injured by the derailment of a train, resulting from the fall of a stone from an embankment then in process of construction by a contractor employed by the railway, it being held that the railway was negligent in failing to guard against such an accident. The right doctrine, however, would seem to be that which is so clearly stated by Lord Westbury. 1 15 Gratt. 230. LIABILITY FOE OTHER COEPOEATIONS, ETC. 131 CHAPTER IY. THE RAILWAY'S LIABILITY FOR THE ACTS AND OMISSIONS OF OTHER RAILWAYS AND OF PERSONS OTHER THAN SER- VANTS AND CONTRACTORS. I. The general rule determining the liability. II. The liability of railways for lessees. III. The liability of railways for mortgage trustees in possession. IV. The liability of railways for receivers. V. The liability of railways for means of transportation under the im- mediate control of third parties. VI. The liability of railways for connecting lines. VII. The liability of a railway for the negligence of other railways which under statutory authority use its line. VIII. The liability of a railway for other railways or individuals which by contract use its line. I. THE GENERAL RULE DETERMINING THE LIABILITY. The railway is liable for the negligent acts of other corporations and of individuals, which hold to it a relation of agency. 129. Upon the principles stated in the preceding chapters, the railway is not liable for the negligent acts of those who are not its agents, and this doctrine is further illustrated in the cases of injuries done in the operation of a railway line by a receiver appointed by a court of competent jurisdiction, or by mortgage trus- tees in exclusive possession of the line, and also in the cases of injuries done by negligence upon the part of another railway, which exercises statutory running powers over the line, or which operates the line by virtue of a lease made under express statutory authority; but the converse of the proposition is illustrated in the cases of injuries done in the operation of a line by a 132 LIABILITY FOE LESSEES. lessee to whom the line lias been lensed without express statutory authority, and also in the cases of injuries done to a passenger by the failure of a means of trans- portation which is under the control of a third party. II. THE LIABILITY OF RAILWAYS FOE, THE NEGLIGENCE OF LESSEES. The railway is liable for the negligent acts of a lessee of its line, when the lease has not been expressly authorized by statute, and not liable when the lease has been so authorized. 130. A railway cannot without express statutory authority divest itself of its franchise, or delegate to others the performance of that duty which the legisla- ture has imposed upon it ; thus, in Gardner v. L. C. & D. Ry., 1 Cairns, L. J., said, " when Parliament, acting for the public interest, authorizes the construction and maintenance of a railway, both as a highway for the public, and as a road on which the company may them- selves become carriers of passengers and goods, it con- fers powers and imposes duties and responsibilities of the largest and most important kind, yet it confers and imposes them upon the company which Parliament has before it, and upon no other body of persons. These powers must be executed, and these duties be dis- charged by the company. They cannot be delegated or transferred." * * * So, in W. A. & G. R. R v. Brown, 2 Davis, J., said, " it is the accepted doctrine in this country, that a railroad coloration cannot escape the performance of any duty or obligation imposed by its charter or the general laws of the State by a vol- untary surrender of its road into the hands of les- sees." These views are abundantly supported by other 1 L. R. 2 Ch. 201. J 17 Wall. 445. LIABILITY FOE LESSEES. 133 authorities. 1 Therefore, where the lease has not been authorized by express statutory authority, both the les- sor and lessee railways are liable for injuries done by the lessee's negligent operation of the line. 2 Upon the same principle, a railway is also liable for negligence on the part of persons whom it voluntarily permits to exercise its franchise of running cars over its line. 3 131. On the other hand, where a railway, under due authority of law, has leased its line to another railway, the lessor railway is not liable for torts committed by the lessee railway in the operation of the line. 4 Yet, in Singleton v. S. W. R. R., 5 where a lease had been authorized by statute, the lessor railway was held liable to a passenger who was injured by the negligent opera- tion of a train by the servants of the lessee railway, upon the ground that the statute authorizing the lease did not, in terms, exempt the lessor railway from lia- bility ; but this case is certainly in conflict with the current of authority. 132. A railway operated on joint account by re- ceivers of part of its line, and also by lessees of the remaining part thereof, is liable where the railway has permitted tickets to be issued in its name for transpor- tation over the whole line ; 6 for, as Davis, J., said, " the 1 Y. & M. L. R. R. v. Winans, 17 Howard 30 ; Beman v. Rufford, 1 Sim. N. S. 550; Winch v. B. L. & C. J. Ry., 5 De G. & S. 562, 16 Jur. 1035 ; G. N. Ry. v. E. C. Ry , 9 Hare 306 ; Black v. D. & R. Canal Co., 22 N. J. Eq. 130 ; M. R. R. v. B. & C. R. R., 115 Mass. 347 ; Thomas v. W. J. Ry., 101 U. S. 71. 2 I. C. R. R. v. Barron, 5 Wall. 90 ; C. & St. L. R. R. v. McCarthy, 20 111. 385; C. & R. I. R. R. v. Whipple, 22 Id. 105; Nelson v. V. C. R. R., 26 Vt. 717 ; McElroy v. N. R. R, 4 Cush. 400 ; Y. & M. L. R. R. v. Winans, 17 How, 30; Freemann v. M. 2 Ld. Raymond 918, 1 Sm. L. C. 291. 232 THE DUTY TO PASSENGERS. safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all per- sons that had any dealings with them, by combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point." It is obvious that neither the rule thus stated, nor the reason given for it, is applicable to carriers of passen- gers. In White v. Boulton, 1 Kenyon, C. J., at Nisi Prius in 1791, directed the jury that carriers were bound to carry their passengers "safely and properly." In 1809, in Christie v. Griggs, 2 Sir James Mansfield, C. J., held the carrier's duty to be, " that, as far as human care and foresight could go, he would provide safe conveyance." In Harris v. Costar, 3 Best, J., held that the obligation to carry safely " meant that the de- fendants were to use due care." Innumerable dicta to a like effect might be quoted, but it is sufficient to cite the words of Grier, J., who said, in the leading case in the United States, 4 that " when carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the pas- sengers should not be left to the sport of chance or the negligence of careless agents." The general rule, as thus stated, is supported by a multitude of authorities. 5 1 Peake 113. 2 2 Camp. 79. 3 1 C. & P. 636, 11 E. C. L. 4 P. & K. R. R. v Derby, 14 Howard 468. 5 Christie v Griggs, 2 Camp. 80 ; Bremner i>. Williams, 1 C. & P. 414, 11 E. C. L. ; Sharp v. Gray, 9 Bing. 457 ; White v. Boulton, Peake 113; Harris v. Cos- tar, 1 C. & P. 636, 1 1 E. C. L. ; Fowler v. Locke, L. R. 7 C. P. 272, 9 Id. 751 n. ; Searle v. Laveriek, L. R. 9 Q. B. 122; Kopitoff v. Wilson, 1 Q. B. D. 377; RAILWAYS NOT INSURERS. 233 237. Railways, nor being insurers of the safety of their passengers, nor liable for injuries to their pas- sengers caused by an act of God, or resulting from in- evitable accident, it would seem to follow that they could not reasonably be held answerable for injuries to their passengers resulting from such defects in their machinery or appliances as could not have been guarded against by the exercise of care on their part. Yet there has been some conflict of authority on this point. This question seems first to have been raised in Ingalls v. Bills, 1 where the plaintiff, a passenger on a coach, was injured by the breaking of an axletree of the coach by reason of a hidden flaw, which the most careful exami- nation failed to discover. Hubbard, J., in a learned and soundly reasoned opinion, summed up the law in the proposition that "where the accident arises from a hidden and internal defect which a careful and thorough Randall v. Newson, 2 Id. 102 ; Hyman v. Nye, 6 Id. 685 ; White v. F. R. R., 136 Mass. 321 ; Sales v. Western Stage Co., 4 Iowa 547 ; Wilson v. N. P. R. R., 26 Minn. 280; Warren v. F. R. R , 8 Allen 233; Taylor v G. T. Ry.. 48 N. H. 229 ; T., H. & W. R. R. v. Baddeley, 54 111. 19 ; Dunn v. G. T. Ry.', 58 Me. 157 ; Tuller v. Talbot, 23 111. 357 ; P. & C. R. R. v. Thompson, 56 Id. 138 ; I. & St. L. R. R. v. Horst, 93 U. S. 291 ; T. H. & I. R. R. v. Jackson, 81 Ind. 20 ; Sherlock v. Ailing, 44 Id. 184; Penna.Co. v. Roy, 102 U. S. 451 ; M. R. R. v. Blakely, 59 Ala. 477 ; Tanner v. L. & N. R. R., 60 Id. 621 ; Wheaton v. N., B. & M. R. R, 36 Cal. 593 ; P. P. C. Co. v. Barker, 4 Colo. 344 ; Der- wort v. Loomer, 21 Conn. 253; Flinn v. P., W. & B. R. R., 1 Houston (Del.) 499; U. P. R. R. v. Hand, 7 Kans. 392; Sherley v. Billings, 8 Bush. 151; Black v. C. R. R., 10 La. An. 38 ; B. & O. R. R. v. Worthington, 21 Md. 275 ; McClary v. S. C. P. R. R, 3 Neb. 54 ; Laing v. Colder, 8 Penna. St. 482 ; Meier v. P. R. R., 64 Id. 230 ; P. & R. R. R. v. Anderson, 94 Id. 351 ; I. & G. N. R. R. v. Halloren, 53 Tex. 46 ; V. C. R. R. v. Sanger, 15 Grat. 236 ; P. & R. R. R. v. Derby, 14 How. 468 ; Steamboat New World v. King, 16 Id. 469 ; N. Y. C. R. R. v. Lockwood, 17 Wall. 357 ; Stockton v. Frey, 4 Gill 406 ; The State v. B. & O. R. R., 24 Md. 84 ; McElroy v. N. & L. R. R., 4 Cash. 400 ; Schopman v. B. &. W. R. R., 9 Id. 24 ; Knight v. P.. S. & P. R. R., 57 Me. 202 '; Fairchild v. C. S. Co., 13 Cal. 604; Jamison v. St. J. & S. C. R R., 55 Cal. 593,' 3 Am & Eng, R. R. Cas. 350 ; P. C. & St. L. R. R. v. Williams, 74 Ind. 462, 3 Am. & Eng R. R. Cas. 457; c/. L. C. Ry. v. Weams, 80 Ky. 420, 8 Am. & Eng. R. R. Cas. 399. 1 9 Mete. 1. 234 RAILWAYS NOT INSURERS. examination vould not disclose, and which could not be guarded against by the exercise of a sound judgment and the most vigilant oversight, then the proprietor is not liable for the injury, but the misfortune must be borne by the sufferer as one of that class of injuries for which the law can afford no redress in the form of a pecuniary recompense." In Readhead v. Midland By., 1 the plaintiff, a passenger by the defendant's line, was injured by the derailment of the carriage in which he was riding, caused by the breaking of the tire of a wheel from a hidden flaw, which flaw it was proven was not possible of discovery by the exercise of the greatest care, either on the part of the railway company or of the manufacturer of the wheel. The judge left it to the jury to say whether on the evidence they were satisfied that the injury to the plaintiff was due to the negligence of the defendants. The jury found for the defendants, and judgment was entered on the verdict for them, and affirmed in the Exchequer Chamber on the ground that carriers of passengers are not answerable as insurers for the safety of their vehicles and appliances, but that they are liable only for such accidents as may happen from any defect therein which might have been pre- vented by the exercise of due care on their part, and that " the duty to take due care, however widely con- sidered or however rigorously enforced, will not sub- ject the defendants to the plain injustice of being com- pelled by the law to make reparation for a disaster arising from a latent defect in the machinery which they are obliged to use, which no human skill or care could either have prevented or detected." Blackburn, J., dissented in the court below, conceding that the rule in Coggs v. Bernard was not applicable, and that the 1 L. R. 2 Q. B. 412, 4 Id. 379. RAILWAYS NOT INSURERS. 235 carrier of passengers is not an insurer, but holding that the obligation of the carrier to provide a vehicle reason- ably fit for the journey is absolute, and that a failure to fulfill that obligation is sufficient to make hirn liable for all the consequences, for the reason that the vehicle being supplied and selected by the carrier, the passenger having no means of examining the carriage and no voice in its selection, there is an implied warranty that the carriage is reasonably fit. In Alden v. N. Y. C. R. R., 1 the Court of Appeals of New York took the same view as that expressed by Blackburn, J., but the later cases in New York have followed the rule as laid down by the Court of Exchequer Chamber. In Meier v. P. R. R., 2 the injury resulted from a hidden flaw in the axle, and judgment for the defendant was affirmed by the Supreme Court, Agnew, J., saying : " Absolute liability requires absolute perfection in machinery in all respects, which is impossible. The utmost which human knowl- edge, human skill, and human foresight and care can provide is all that in reason can be required. To ask more is to prohibit the running of railways unless they possess a capital and surplus which will enable them to add a new element to their business, that of in- surers." 3 238. It is, therefore, the duty of the railway to ex- ercise care in the provision of good and sufficient mate- rial, to employ skilled engineers and contractors, and to follow correct methods in the original construction, in- spection, and subsequent maintenance in repair of its 1 26 N. Y. 102. 2 04 Pcnna. St. 225. 3 See also Gilson v. J. C. H. Ry., 76 Mo. 282, 12 Am. & Eng. R. R. Cas. 132 ; Smith v. C, M. & St. P. Ry., 42 Wise. 520 ; De Graff v. N. Y. C. & H. R. R. R., 76 Id. L25; McPadden v. N. Y. C. R. R., 44 Id. 478; Caldwell v. N. J. S. Co., 47 Id. 290; Carroll v. S. J. R. R., 58 Id. 126; G. R. & I. R. R. v. Boyd, 65 Ind. 526 ; Lemon v. Chanslor, 68 Mo. 340; Sawyer t. H. & St. J. R. R., 37 Id. 240. 236 EXTENT OF RAILWAY'S DUTY. station approaches, station buildings, station platforms, and of the embankments, bridges, cuttings, tunnels, levels, roadbed, rails, and switches, which constitute its line, and of the engines and cars which it uses in the transportation of its passengers ; and it is also the duty of the railway to adopt and put into operation a system for the operation of its line, to make and enforce reason- able rules and regulations for the safety of its passengers, to employ a sufficient number of servants, to select its servants carefully, to make and enforce regulations for their guidance, and to use in the operation of its line every reasonable precaution for the safe transportation of its passengers. A failure of duty in any of these respects will render the railway liable ; thus, where a bridge or an embankment has broken down, its fall must, in the absence of vis major, have resulted from want of skill on the part of the engineer who planned it, or on the part of the contractor who built it, or from a failure to adopt the best method of construction or a neglect to use materials of adequate strength, or from a failure to maintain the bridge or embankment in a safe condition. To relieve the railway from responsibility for such an accident, it must appear that there was no negligence in any one of these respects, and it is not enough to show that the bridge was planned by a com- petent engineer; 1 thus, in Grote v. C. & H. By., 2 where a passenger was injured by the fall of a bridge, which had been built by a competent engineer engaged by the defendant, at the trial, Williams, J., directed the jury " that the question was whether the bridge was con- structed and maintained with sufficient care and skill and of reasonably proper strength with regard to the 1 Grote v. C. & H. Ry., 2 Ex. 251 ; P. & R. R. R. v. Anderson, 94 Penna. Rt. 351, 6 Am. & Eng. R. R. Cas. 407. 1 2 Ex. 251. DUTY OF CONSTRUCTION AND REPAIR. 237 purpose for which it was made, and that if they should think not, and that the accident was owing to any such deficiency, the plaintiff would be entitled to recover." A verdict having been found for the plaintiff, a rule for a new trial upon the ground of misdirection was refused, Pollock, C. B., holding the test of freedom from liability to be whether the defendant had employed a person " fully competent to the work, and the best method is adopted and the best materials are used," and adding : " it cannot be contended that the defendants are not responsible for the accident merely on the ground that " they have employed a competent person to construct the bridge." 239. The same principles are applicable in cases where injury to a passenger results from the failure of any means of transportation, whether resulting from original defects in construction or from subsequent wear and tear in operation. 1 While the railway has a right to assume that rolling stock bought from a reputable manufacturer is reasonably sufficient, and is not to be held liable for latent defects in such rolling stock, which could not have been discovered by the railway or by the manufacturer, by any reasonable and practicable means of inspection, 2 yet where injury to a passenger results from an imper- fection in the line, or in the means of transportation, due to the negligence of the party who built the same and furnished it to the railway, the railway is liable therefor. 3 240. Upon the principle pointed out in Mersey Docks Trustees v. Gibbs, 4 if knowledge of the existence of a 1 Manser v. E. C. Ry., 3 L. T. N. 8. 585. * G. B. & I. R. R. v. Huntley, 38 Mich. 537. 8 Grote v. C. & H. Ry., 2 Ex. 251 ; Francis v. Cockrell, L. R. 5 Q. B. 501 ; Hegeraan v. W. R. Corporation, 13 N. Y. 9 ; Readhead v. M. Ry., L. R. 4 Q. B. 379 ; Burns v. C. & Y. Ry., 13 C. L. (N. S.) 543. * L. R. 1 H. L. 93. 238 DUTY OF INSPECTION. cause of mischief makes the railway responsible for the injury it occasions, it will be equally responsible when, by its negligence, the existence of that cause of mischief is not known to it, and, of course, in such a case, the negligence of the superintending officials of a railway must be held to be negligence upon the part of the railway. 241. It is the duty of the railway to vigilantly inspect its line and buildings, and, as has been shown, the fact that an injury was immediately caused by an act of God, will not relieve the railway, if that injury could have been guarded against by the exercise of care on the part of the railway. It is also the duty of the railway, not only to test its machinery and appliances before they are put into use, but also to test them from time to time subsequently, in order that it may be known if they are deteriorating by wear and tear. 1 The criterion of neg- ligence in such cases is, not whether the particular de- fect, which was the cause of the injury, could possibly have been detected by the use of scientific means of in- vestigation, but whether the defect ought to* have been observed practically and by the use of ordinary and reasonable care. 2 So in the case of cars received by the railway from another line for transportation over its line, the duty of the railway requires it to subject such cars to as thorough an inspection as the necessary exi- gencies of the traffic permit ; thus, in Richardson v. G. E. By. 3 the plaintiff, a passenger on the defendant's line, had been injured by a collision caused by the break- ing of the axle of a coal truck, resulting from a crack which could have been discovered if the axle had been 1 Manser v. E. C. By., 3 L. T. N. S. 585 ; T. & St. L. R. R. v. Suggs, 62 Tex. 323, 21 Am. & Eng. R. R. Cas. 475. 2 Stokes v. E. C. Ry., 2 F. & F. 691 ; Robinson v. N. Y. C. & H. R. R. R., 9 Fed. Rep. 877, 20 Blatch. 338. 3 I,. R. 10 C. P. 486, 1 C. P. D. 342. DUTY OF INSPECTION. 239 scraped clean of dirt, and had been subjected to a minute examination. The line of the Midland Railway con- nected with the defendant's line at Peterborough, and under a statute, 1 the defendants were bound to receive and forward carriages and trucks delivered to them by the Midland Company, and twenty to thirty thousand of such trucks were received at that junction weekly and forwarded. When this particular truck was brought on the defendant's line at Peterborough certain defects, in no way connected, however, with the defect which ultimately caused the accident, were perceptible, and such of the repairs as could be made were made. The exigencies of traffic prevented the defendant from mi- nutely examining the axle. The jury found specially that the defect which caused the accident was discover- able by careful examination, that it was not the duty of the defendants to examine the axle, but that it was their duty to require from the wagon company some strict assurance that it had been thoroughly examined and repaired. The judge directed a verdict for the defend- ants, but the Court of Exchequer entered judgment for the plaintiff upon the ground that the defendants were negligent in not ascertaining that proper examination had been made before the truck was allowed to proceed. In the Court of Appeal, however, this judgment was re- versed upon the ground that the defendants were not bound to do more than had been done in the way of ex- amining the truck under the circumstances of the case, and that as the defects which were discovered were un- connected with the particular defect causing the accident, there was nothing to impose upon the defendants the duty of making a more minute examination than the exigencies of the traffic permitted. 242. The railway is, therefore, liable for negligence 1 Sec. 92 of 8 and 9 Vict. chap. 20. 240 DUTY OF MAINTENANCE. in the original construction, or subsequent maintenance of its roadway, 1 or of its rails, 2 or of its ties, 3 or of its bridges, 4 or of its embankments, 5 or of its level crossings of other lines, 6 or of its switches, 7 or of its rolling stock, including cars, 8 car axles, 9 car brakes, 10 car wheels, 11 and locomotives. 12 243. The duty of the railway extends to all its means of transport, whether the particular means which proves. to be deficient be, or be not, at the time of the injury, 1 G. W. Ky. v. Braid, 1 Moo. P. C. N. S. 101 ; P., C. & St. L. R. K. v. Wil- liams, 74 Ind. 462 ; O'Donnell v. A. V. R. E., 59 Penna. St. 259 ; V. C. R. R. v. Sanger, 15 Gratt. 230 ; Mattison v. N. Y. C. R. R., 35 N. Y. 487 ; P., P. & J. R. R. v. Reynolds, 88 111. 418. 2 Brignoli v. C. & G. E. R. R., 4 Daly 182; M. S. & N. J. R. R. v. Lantz, 29 Ind. 528 ; C, C, C. & I. Ry. v. Newell, 75 Ind. 542, 8 Am. & Eng. R. R. Cas. 377 ; George v. St. L., I. M. & S. R. R., 34 Ark. 613, 1 Am. & Eng. R. R. Cas. 2y4 ; McPadden v. N. Y. C. R. R., 44 N. Y. 478 ; Reed v. N. Y. C. R. R., 56 Barb. 493. 3 P., C & St. L. R. R. v. Thompson, 56 111. 138 ; T. & P. R. R. v. Hardin, 62 Tex. 367, 21 Am. & Eng. R. R. Cas. 460. * Grote v. C. & H. Ry., 2 Ex. 251 ; T. W. & W. Ry. v. Conroy, 68 111. 560 ; Oliver v. N. Y. & E. R. R., 1 Edm. S. C. 589 ; Locke v. S. C. & P. Ry., 46 Iowa 109 ; K. P. Ry. v. Miller, 2 Colo. 442 ; Jamison v. St. J. & S. C. R. R., 55 Cab 593, 8 Am. & Eng. R. R. Cas. 350 ; B. S. O. & B. R. R. v. Rainbolt, 99 Ind. 551, 21 Am. & Eng. R. R. Cas. 466 ; D. & W. R. R. i>. Spicker, 61 Tex. 427, 21 Am. & Eng. R. R. Cas. 160. 6 Henley v. H. R. R., 1 Edm. S. C. 359 ; P. & R. R. R. v. Anderson, 94 Penna. St. 351 ; I. & G. N. R. R. v. Halloren, 53 Tex. 46, 3 Am. & Eng. R. R. Cas. 343. 6 Graham v. G. W. Ry., 41 Up. Can. (Q. B.) 324. 7 N. Y., L. E. & W. R. R. v. Daugherty, 11 Weekly Notes of Cases (Penna.) 437 ; P. & R. I. R. R. v. Lane, 83 111. 449 ; B. & O. R. R. v. Worthington, 21 Md. 275 ; McElroy v. N. & L. R. R., 4 Cush. 400 ; Smith v. N. Y. & H. R. R., 19 N. Y. 227 ; Caswell v. B. & W. R. R., 98 Mass. 194. 8 Penna. Co. v. Roy, 102 U. S. 451, 1 Am. & Eng. R. R. Cas. 225 ; C, C, C. & I. R. R. v. Walrath, 38 Ohio St. 461. 9 Hegeman v. W. R. R, 13 N. Y. 9 ; Alden v. N. Y. C. R. R., 26 N. Y. 102 ; McPadden v. Same, 44 Id. 478 ; G. R. & I. R. R. v. Boyd, 65 Ind. 525 ; Richard- son v. G. E. Ry., L. R. 10 C. P. 486, 1 C. P. D. 342. 10 N. Y., L. E. & W. R. R. v. Daugherty, 11 Weekly Notes of Cases (Penna.) 437 ; Costello v. S. & R. R. R., 65 Barb. 92. 11 T. W. & W. R. R. v. Beggs, 85 111. 80 ; Readhead v. M. Ry., L. R. 2 Q. B. 412, 4 Id. 379 ; Meier v. P. K. R., 64 Penna. St. 225. u Robinson v. N. Y. C. & H. R. R. R., 20 Blatcf. 338 ; Manser v. E. C. Ry, 3 L. T. N. J. 585. DUTY AS TO MEANS OF TRANSPORT. 241 under the management of the railway, or of a third party ; * thus in John v. Bacon, 2 the defendant having contracted to carry the plaintiff by steamer from Mil- ford Haven to Liverpool, the mode of transit provided being that passengers should go on board of a hulk, owned by a third party, and moored in the harbor of Milford Haven, and thence embark on the steamer when it should stop en route from Haverford West. The plaintiff, in descending from the hulk to the steamer, fell into a hatchway in the hulk, negligently left un- guarded, and after a verdict for the plaintiff a rule for a new trial was discharged, the ground of decision being that the carrier was answerable for any inadequacy in the means of transit resulting from negligence on his own part, or on the part of the person providing the particular means whose defective condition was the cause of injury to the passenger. So in Knight v. P. S. & P P. P., 3 a railway which had contracted to carry a pas senger part way by train and part way by steamboat, was held liable to him for injuries caused by a failure to maintain in good repair the wharf over which th<= passenger was compelled to pass in going from the train to the steamboat. So in V. & M. P. R. v. Howe, 4 the wreck of a freight train having stopped the progress of a passenger train at night, the passengers were directed by the railway's servants to leave their train and tc walk to another train beyond the wreck, crossing on a plank over a ditch, there being no light at the plank, and no notice being given of the approach to it, and the plaintiff in so doing fell and was injured, and the rail- way was held liable therefor. 5 So in Buffett v. T. & B. 1 John v. Bacon, L. R. 5 C. P. 437 ; Knight v. P. S. & P. R. R., 56 Me. 227 : V. & M. R. It. v. Howe, 52 Miss. 202 ; Jamison v. St. J. & S. C. R. R., 55 Cal. 593, 3 Am. & Eng. R. R. Cas. 350. 1 L. R 5 C. P. 437. ' 56 Me 234. 4 52 Miss. 202. 6 Upon the same principle it was held in Northrup v. Ry. Pass. Assurance 16 212 SLEEPING-CARS, ETC. R. R., 1 a railway was held liable to a passenger for in- juries received in a railway omnibus while on his way to the railway station, and in N. J. R. R. v. Palmer, 2 a New Jersey railway was held liable for injuries re- ceived by a passenger while crossing on a ferry boat from New York to Jersey City. 244. Railways are also liable for injuries received by their passengers in sleeping-cars and other cars run by the railway as a part of its train, although such cars may be owned and manned by an independent corpora- tion, and although the passenger may have specially contracted with that independent corporation for the privilege of riding in such car. Thus, in Penna. Co. v. Roy, 3 the plaintiff, having purchased a ticket from the defendant, and become a passenger on its line, also pur- chased a ticket from the Pullman Palace Car Co., and having taken a seat in a car of the latter company, which was run as part of a train of the defendant, was injured by the falling of a berth in the car, resulting either from a defective construction of the car, or from negligence on the part of the servants in charge of the car. Judgment upon a verdict for the plaintiff' was re- versed for an error in the court below in admitting ir- relevant evidence ; but the liability of the defendant to the plaintiff was thus clearly stated by Harlan, J. : " the duty of the railroad company was to convey the passen- ger over its line. In performing that duty, it could not, consistently with the law and the obligations arising out of the nature of its business, use cars or vehicles whose inadequacy or insufficiency, for safe conveyance, was Co., 43 N. Y. 516, that the personal representatives of a person injured in the course of a journey by a connecting railway and steamboat line, by a fall on a 9lippery sidewalk while walking from steamboat to train, could recover under a policy stipulating for indemnity against injury " when caused by any accident while travelling by public conveyances, etc." 1 40 27- Y. 168. » 4 /room (N. 1.) 90. 3 J 02 U. S. 451. SLEEPING-CAES, ETC. 243 discoverable upon the most careful and thorough ex- amination. If it chose to make no such examination, j or to cause it to be made ; if it elected to reserve or ex- ' ercise no such control or right of inspection, from time to time, of the sleeping-cars which it used in convey- ing passengers, as it should exercise over its own cars, it was chargeable with negligence or failure of duty. The law will conclusively presume that the conductor and porter, assigned by the Pullman Palace Car Com- pany to the control of the interior arrangements of the sleeping-car in which Hoy was riding when injured, ex- ercised such control with the assent of the railroad company. For the purposes of the contract under which the railroad company undertook to carry Roy over its line, and, in view of its obligation to use only cars that were adequate for safe conveyance, the sleep- ing-car company, its conductor, and porter, were, in law, the servants and employes of the railroad company. Their negligence, or the negligence of either of them, as to any matters involving the safety or security of passengers while being conveyed, was the negligence of the railroad company. The law will not permit a rail- road company, engaged in the business of carrying per- sons for hire, through any device or arrangement with a sleeping-car company whose cars are used by the railroad company, and constitute a part of its train, to evade the duty of providing proper means for the safe conveyance of those whom it has agreed to convey." 1 So, in Thorpe v. N. Y. C. & H. R. R. R., 2 a passenger, being unable to obtain a seat in any car of the train other than the drawing-room car (which was not owned nor manned by the railway), seated himself in that car, 1 Pee also C. C, C. & I. K. R. v. Walrath, 38 Ohio St. 461, 8 Am. & Eng. R. R. Cas. 371 ; Kinsley v. L. S. & M. S. R. R, 125 Mass. 54. * 76 N. Y. 402. 244 IMPROVED APPLIANCES. and, having refused to pay the extra fare demanded for a seat in that car, he was assaulted by the porter in charge of that car, and the railway was held liable to the passenger. VI. THE DUTY OF THE RAILWAY AS TO THE ADOPTION OF IMPROVED APPLIANCES AND METHODS OF OPERA- TION. The duty of the railway to its passengers requires it to adopt such im- proved appliances and methods of operation as, having been tested and found to materially contribute to the safety of railway operations, are in practical use, and can be in fact adopted. - 245. The standard of railway efficiency changes from day to day with the progress of discoveries in science and inventions in the arts, and that system and those appliances of operation, whose adoption and application a few years ago were regarded as the full performance of the railway's duty to its passengers would be, to-day, considered, in the practice of well-managed railways, to fall far short of an adequate performance of that duty. It is obviously within the scope of treatises upon engi- neering and upon railway operation, and not within the scope of a law book, to prescribe the particular system and appliances which, according to the standard of to- day, ought to be enforced and used by railways, but it may be proper to notice here certain practical points which railway experience has, up to this time, estab- lished. The first point is the necessity of an intelligent financial administration based upon sound principles, for a railway whieh is under the pressure of chronic pecuniary embarrassment cannot be as efficiently oper- ated as one whose earnings exceed its necessary dis- bursements for operating expenses, maintenance of line and rolling stock, and payment of interest upon funded debt, to say nothing of dividends to shareholders. If IMPROVED APPLIANCES. 245 its embarrassments are so great as to involve the creation of a floating debt, incurred for operating expenses, and especially if its employes are not promptly and ade- quately paid, it is obvious that the due maintenance of line and rolling stock will be neglected, and that its service will be disorganized. The next point is the necessity of the organization of the service of the line on a comprehensive system. It needs no argument to show that the employes of a railway which undertakes to move a large volume of traffic are so many in number, and their duties are so various, and those duties require, for their right performance, so much intelligence and concentration of purpose that the employes must not. only be adequately remunerated, and have the added stimulus of anticipated promotion as a reward for faith- ful service, and of prompt punishment for their non- performance of duty, but they must also be organized, trained, subjected to discipline, and controlled in their action by wisely framed regulations which will, as far as possible, minimize the exercise of individual discretion by subordinates. The next point is that a thorough and vigilant inspection of the line and a free use of the telegraph in operating it, especially if the block system be adopted and enforced, will, to a great extent, diminish the danger of collision on the line with either moving or stationary obstructions other than such as necessarily result from want of fencing and the frequency of grade crossings; and automatic train brakes will, if obstruc- tions be observed, enable the train to be brought to a speedy stop, and the modern increased solidity of the cars, and their close and rigid coupling will, if the obstruc- tion be met, prevent the breaking up or telescoping of the cars. 1 There are many other points that might be 1 Railway science has not yet solved the problem of heating cars in such a manner as to avoid the danger from fire in cases of derailment. 2-16 IMPROVED APPLIANCES. noted, such as the use of guard rails on bridges and em- bankments ; the flooring of bridges, so as to prevent the falling of derailed engines or cars upon the trusses of the bridge ; the connection of sidings with the main line tracks so that a train must back in order to go upon the siding ; the locking of sidings so that a train cannot be heedlessly moved from the siding to the line ; the mark- ing of ends of trains by flags and lights ; the guarding of switches by automatic targets and lights, and the oper- ation of the line upon the block system, and by the use of interlocking signals whose normal condition is danger, and which can only be moved to safety by levers worked in the block houses. 1 Yet it cannot be laid down as a general rule of law that the duty of every railway to its passengers requires it to adopt in its en- tirety the system of operation and the appliances to which reference has been made, or any other system or appliances, but it can only be said, that if it be proven that any particular appliance or method having been tested and found to materially contribute to the safety of railway operations, is in practical use, could have been adopted by the railway, and if adopted would have prevented the injury to the plaintiff, it is then for the jury to determine, whether or not the failure to adopt that particular appliance or method was, under all the circumstances of the case, negligence upon the part of the railway. 2 The rule on this subject is well illustrated 1 See Barry's " Railway Appliances ;" Adam's " Notes on Railroad Accidents." 3 Freemantle v. L. & N. W. Ry., 10 C. B. N. S. 95, 100 E. C. L.; Ford v. L. & S. W. Ry., 2 F. & F. 730 ; Hegeman v. Western R. R. Corporation, 13 N. Y. 9 ; Smith v. N. Y. & II. Ry., 19 Id. 127 ; Brown v. N. Y. C. Ry., 34 Id. 404 ; Taylor v. Ry., 48 N. II. 304 ; B. & O. Ry. v. State, 29 Md. 252, Id. 420 ; Warren v. Fitchburg Ry., 8 Allen 227 ; LeBaron v. East Boston Ferry Co., 11 Id. 312; Meier v. P. E. R., 64 Penna. St. 225 ; F. & B. Turnpike Co. v. P. & T. R. R., 54 Id. 345 ; L. . White, 88 Penna. St. 327. 260 NEGLIGENCE OF PASSENGEKS. the passenger having arrived at the station after dark in suffieient time to get to the platform voluntarily waits and attempts to get on the car from the side away from the station; 1 nor will negligence upon the part of the railway, in failing to give notice of the approach of a moving train, in all cases render it liable to one who fails to exercise reasonable care as to his own safety ; thus, in Carroll v. P. E. E., 2 the plaintiff, in going to the defendant's station, intending to be a passenger and attempting to pass in front of a moving train which, as he had admitted he could have seen if he had looked, was run over, and having been nonsuited at the trial judgment for the defendant was affirmed in error. 3 On the other hand, in D. W. & W. Ey. v. Slattery, 4 the plaintiff's decedent having gone to the defendant's station to accompany a relative who was going to take a train and having crossed the line at night in front of an ap- proaching train, obtained the ticket for the passenger and recrossed behind that train and was killed by a fast express train upon the other track. The evidence was contradictory as to whether the express train had whistled or given other notice of its approach, and after verdict for the plaintiff, it was held, Lords Hatherly, Coleridge, and Blackburn dissenting, that the case had been properly left to the jury. IX. BOARDING AND DESCENDING FROM TRAINS. 257. It is the duty of railways to give to passengers at its stations reasonable notice of the starting of its 1 M. C. R. R. v. Coleman, 28 Mich. 440; Harvey v. E. R. R, 116 Mass. 269. ■ 12 Weekly Notes of Cases (Penna.), 348. •See also Wheelwright v. B. & A. R. R., 135 Mass. 225, 16 Am. & Eng. R. R. Cas. 315 ; C, B. & Q. R. R. r. Dewey, 26 111. 255. 4 3 Ap. Cas. 1155. CALLING NAME OF STATION. 261 trains, 1 and to give to its passengers in its trains reason- able notice of the approach of the train to its stations, in order that the passengers who are to leave the cars may prepare to alight. 2 There has been some diversity of opinion as to the effect of calling out the name of a station when a train is in motion. In Lewis v. L. C. & D. Ry., 3 Blackburn, J., said, "Calling out the name of a station is not an invitation to alight." In Weller v. L. B. & S. C. Ry., 4 Brett, J., said, "I agree that the calling out the name of a station before the train has come to a standstill is no evidence of negligence on the part of the company;" and Honeyman, J., 5 expressed his opinion to the same effect. In Whittaker v. M. & S. Ry., 6 Bovill, C. J., said, it is "a question for the jury whether the calling out of the name of a station amounts, under all the circumstances, to an invitation to alight;" and Willes, J., said, "I cannot now understand how it could be said as a matter of law that the calling out of the name of a station was not an invitation." In Bridges v. N. L. Ry., 7 Pollock, B., said, "it is an announcement by the railway officers that the train is approaching or has arrived at the platform, and that the passengers may get out when the train stops at the platform." And Brett and Denman, JJ., thought that the question was one for the jury. The subject was also somewhat considered in P. R. R. v. Aspell, 8 and in P. R. R. v. White, 9 but no positive view with regard to the neces- sary legal effect of calling out the name of the station 1 Perry v. C. R. R., 58 Ga. 461. 66 Id. 746. 2 Dawson v. L. & N. R. R., Ky. ,11 Am. & Eng. R. R. Cas. 134. 8 L. R. 9 Q. B. 71. * L. R. 9 C. P. 132. 6 Id. 134. « L. R. 5 C. P. 464, note. » L. R. 7 H. L. 224. • 23 Penna. St. 147. • 88 Id. 327. 262 CALLING NAME OF STATION. was expressed. 1 In Penna. Co. v. Hoagland, 2 where the railway's servant on a train in motion at night announced that the next stop would be at a certain station, naming it, and the train having stopped shortly afterwards upon a siding ten miles short of the station, a female pas- senger, whose destination was that particular station, and who was unacquainted with the route of the railway or the location of its stations, there alighted with the assistance of a railway servant who asked her no ques- tions, and the train then proceeded, leaving her alone, - and it was held that the railway was liable. In Edgar v. N. K. R., 3 where the railway was held liable to a female passenger who was injured in alighting from a slowly moving train at a station, Patterson, J. A., said: "the announcement that the next station was Lefroy does not strike me as having much significance. As a statement of a fact, it contained nothing new to the plaintiff, and as a statement that it was intended that certain passengers should get off the train at that station, it contained no more information than what was con- tained in the contract evidenced by the tickets. But, taken in connection with the slowing of the train with- out stopping it, it is, as far as it goes, a bit of evidence consistent with the position taken by the plaintiff." Perhaps, the right deduction from the cases is that the 1 See also Lewis v. L. C. & D. By., L. E. 9 Q. B 71 ; Weller v. L. B. & S. C. Ky., L. E. 9 C. P. 132, 134; Whittaker v. M. & S. Ey., L. E. 5 C. P. 464, note ; Bridges v. N. L. Ey., L. E. 7 H. L. 224 ; P. E. E. v. Aspell, 23 Penna, St. 117 ; P. R. E. v. White, 88 Id. 327; C E. E. v. Van Horn, 38 N. J. L 133; .Mitchell v. C. & G. T. Ey., 51 Mich. 236, 18 Am.& Eng. E. E. Cas. 176 Taber v. D., II. & L. Ey., 71 N. Y. 489; C. I. E. E. v. Farrell, 31 Ind. 408 Pabst v. B. & P. E. R., 2 McArthur 42; Nicholls v. G. S. & W. Ey., 7 Ir. G L. 40; Thompson i>. B., H. & II. Ey., 5 Id. 517; Brooks v. B. & M. E. E., 135 Mass. 21, 10 Am. & Eng. E. E. Cas. 345; Edgar v. N. E. E., 4 Ont. (Can.) 201, 16 Am.& Eng.E. R. Cas. 347; Penna. Co. v. Hoagland, 78 Ind. 203, 3 Am. & Eng. E. E. Cas. 436. 8 78 Ind. 203, 3 Am. & Eng. E. E. Cas. 436. 3 11 Ont. App. 452, 22 Am. & Eng. E. E. Cas. 433. DUTY TO STOP TRAINS, ETC. 263 effect which is to be attributed to such an announcement is for the jury, if circumstances show that the announce- ment was so made as to induce the person injured to believe that the next stop of the train would be at a station, at Avhich he might safely leave the train. 258. It is the duty of the railway to stop its trains, for a reasonable time, at way stations in order that pas- sengers may get on or off the cars with safety j 1 and the railway is liable when its conductor, or other servant, gives a signal to start while a passenger is obviously in the act of getting on or off its train, 2 but if the train has stopped a reasonable time, and the passenger has given no notice of an intention to alight, and the conductor does not see him in the act of alighting, the railway is not liable for the act of its conductor in starting the train. 3 259. A passenger who is carried past the station, or who is not taken up at the station to or from which the railway had contracted to carry him, is entitled to re- cover compensatory damages. 4 I have, in section 24, 1 Bucher v. N. Y. C. & H. E. R. R., 98 N. Y. 128 ; Wood v. L. S. & M. S. Ry., 49 Mich. 370; Brooks v. B. & M. R. R., 135 Mass. 21 ; D. & M. R. R. v. Curtis, 23 Wise. 152, 27 Id. 158 ; S. R. R. v. Kendrick, 40 Miss. 374 ; Imhoff v. C. & M. R. R., 20 Wise. 344 ; N. O. R. R. v. Statham, 42 Miss. 607 ; Milli- mann v. N. Y. C. & H. R. R. R., 66 N. Y. 642 ; P. R. R. v. Kilgore, 32 Penna. St. 292 ; J., M. & I. R. R. v. Parmalee, 51 Ind. 42 ; Keller v. S. C. & St. P. R. R., 27 Minn. 178 ; Swigert v. H. & St. J. Ry., 75 Mo. 475, 9 Am. & Eng. R. R. Cas. 322 ; W. St. L. & P. Ry. v. Rector, 104 111. 296, 9 Am. & Eng. R. R. Cas. 264 ; Penna. Co. v. Hoagland, 78 Ind. 203, 3 Am. & Eng. R. R. Cas. 436 ; T. W. & W. Ry. v. Baddeley, 54 111. 19 ; Fuller v. N. R. R., 21 Conn. 557 ; Davis v. C. & N. W. Ry., 18 Wise. 175. 2 Swigert v. H. & St. J. R. R., 75 Mo. 475, 9 Am. & Eng. R. R. Cas. 322 ; Bucher v. N. Y. C. & II. R. R. R., 98 N. Y. 128 ; Keating v. N. Y. C. &. H. R. It. It., 49 Id. 673 ; Mitchell v. W. & A. E. R., 30 Ga. 22 ; C. W. D. Ry. v. Mills, 105 111. 63, 11 Am. & Eng. R. R. Cas. 128. ■• Straus v. K. C, St. J. & C. B. Ry., 75 Mo. 185, 6 Am. & Eng. R. R. Cas. 38 1 ; H. & St. J. R. It. v. CJotworthy, 80 Mo. 220, 21 Am. & Eng. R. R. Cas. 371. ' Hobbs v. L. & S. W. Ry., L. R. 10 Q. B. Ill; C, St. L. & N. O. It. R. v. Scnrr, 59 Miss. 456, 6 Am. & Eng. It. 3. Cas. 341 ; Trigg v. St. L., K. C. & N. It. R.. 74 Mo. 147, 6 Am. & Eng. It. R. Cas. 345 ; I. & G. N. R. R. v. Terry, 62 Tex. 380, 21 Am. & Eng. R. R. Cas. 323. 264 BOARDING AND LEAVING TRAINS. given my reasons for the opinion, that when a passenger, not having been set down or taken up at the station to or from which the railway has contracted to carry him, is injured in the attempt to board or leave a moving train the railway is not liable to him, for his injuries are the consequence, not of the railway's breach of con- tract, but of his own rash act. There are, however, many authorities for the proposition that in such a case the railway is liable, if the person injured in getting on or off the train did not incur a danger obviously appar- ent to the mind of a reasonable man. 1 It is, neverthe- less, generally held that when the train is moving at so high a rate of speed, or where the j^lace of the passengers' ascent or descent is so obviously perilous, that a person of ordinary prudence would not attempt to get on or off the train then and there, the act of the person injured in so doing is such contributory negligence as will bar his recovery. 2 It is, a fortiori, contributory negligence 1 Bucher v. N. Y. C. & H. E. R, E., 98 N. Y. 128 ; Swigert v. H. & St. J. E. E., 75 Mo. 475, 9 Am. & Eng. E. E. Cas. 322 ; C. E. E. v. Perry, 58 Ga. 461, 66 Id. 746 ; Johnson v. W. C. & P. E. E., 70 Penna. St. 357 ; P. E. E. v. Kilgore, 32 Id. 292 ; C. V. E. E. v. Maugans, 61 Md. 53, IS Am. & Eng. E. E. Cas. 1S2; Edgar v. N. Ey., 4 Ont. (Can.) 201 ; Doss v, M., K. & T. E. E., 59 Mo. 37 ; Loyd v. H. & St. J. E. E., 53 Id. 509; Curtis v. D. & M. E. E,, 27 Wise. 158 ; D. & M. E. E. v. Curtis, 23 Id. 152 ; Filer v. N. Y. C/E. E., 49 N. Y. 47 ; Delamatyr v. M. & P. M. C. E. E., 24 Wise. 578 ; Davis v. C. & N. W. Ey., 18 Id. 175 ; Price v. St. L., K. C. & N. E. E., 72 Mo. 414, 3 Am. & Eng. E. E. Cas. 365 ; St. L., I. M. & S. E. E. v. Cantrell, 37 Ark. 519, 8 Am. & Eng. E. R. Cas. 198 ; C. & A. E. E. v. Bonifield, 104 111. 223, 8 Am. & Eng. E. E. Cas. 443; Lambeth v. N. C. E. E., 66 N. C. 494; U. P. E. E. v. Diehl, 33 Kans. 422, 21 Am. & Eng. E. E. Cas. 350 ; Boss v. P. & W. E E. E. I. , 21 Am. & Eng. E. E. Cas. 364 ; H. & St. J. E. E. v. Clotworthy, 80 Mo. 220, 21 Am. & Eng. R. R. Cas. 371 ; M. & L. R. R. R. v. Stringfellow, 44 Ark. 32, 21 Am. & Eng. R. R. Cas. 374. 2 McCorkle v. C, R. I & P. Ey., 61 Iowa 555 ; Phillips v. E. & S. R. R., 49 N. Y. 177 ; Harper v. E. Ry., 32 N. J. L. 88 ; D., S. P. & P. R. R. v. Pickard, 8 Colo. 163; M. C. Ry. v. Coleman, 28 Mich. 440; Harvey v. E. R. R., 116 Mass. 269 ; P. E. R. v. Aspell, 23 Penna. St. 147; G., II. & S. A. R. R. v. Le Gierse. 51 Tex. 189; Lindsey v. C, R. I. & P. E. E., 64 Iowa 407, 18 Am. & Eng. E. R. Cas. 179; L. S. & M. S. Ry. v. Bangs, 47 Mich. 470; C. R. R. », Letcher, 69 Ala. 106, 12 Am. & Eng. R. R. Cas. 115; Burrows v. E. Ry., 63 STATUTORY REQUIREMENTS, ETC. 265 in a passenger to attempt to board a train passing a way station when the train has not been flagged, and the servants in charge of the train have no reason to expect that a passenger will attempt to get on the train then and there. 1 260. Statutory regulations requiring certain signals to be given upon the approach of an engine or car to a railway station or highway crossing are primarily in- tended for the protection of persons approaching the line, and not of persons who are in or upon the cars; 2 nor will the railway's neglect to give due notice, or even the particular notice prescribed by statutory authority, of the starting of a train from a way station render it liable to a passenger who voluntarily and without notice to the railway's servants jumps from the train after it has gotten under way; 3 nor will the railway's neglect to give the statutory notice required before putting in N. Y. 556 ; J. R. R. v. Hendricks, 26 Ind. 228 ; Gavett v. M. & L. R. R., 16 Gray 501 ; Hickey v. B. & L. R. R., 14 Allen 429 ; Davis v. C. & N. Ry., 18 Wise. 175; Nelson v. A. & P. R. R., 68 Mo. 595 ; Kelly v. H. & St. J. R. R., 70 Id. 604 ; Strauss v. K. C, St. J. & C. B. Ry., 75 Id. 185, 6 Am. & Eng. R. R. Cas. 384 ; H. & T. C. Ry. v. Leslie, 57 Tex. 83, 9 Am. & Eng. R. R. Cas. 384 ; S. W. R. R. v. Singleton, 67 Ga. 306 ; Jewell v. C, St. P. & M. Ry., 54 Wise. 610, 6 Am. & Eng. R. R. Cas. 379 ; I. C. R. R. v. Chambers, 71 111. 519 ; I. C. R. R. v. Lutz, 84 Id. 598 ; Dougherty v. C, B. & Q. R. R., 86 Id. 467 ; R. & D. R. R. v. Morris, 31 Gratt. 200 ; Gonzales v. N. Y. & H. R. R. R., 50 How. Pr. 126 ; Secor v. T. P. & W. R. R., 10 Fed. Rep. 15; Blodgett v. Bartlett, 50 Ga. 353 ; Haldan v. G. W. Ry., 30 Up. Can. (C. P.) 89 ; Knight v. P. R. R., 23 I -a. An. 462; Hubener v. N. O. & C R. R., Id. 492; Mitchell v. C. & G. T. E?, 31 Mich. 266, 18 Am. & Eng. R. R. Cas. 176 ; McCorkle v. C, R. I. & P. Ry., 61 Iowa 555, 18 Am. & Eng. R. R. Cas. 156 ; W., St. L. & P. Ry. v. Rector, 104 111. 296, 9 Am. & Eng. R. R. Cas. 264 ; R. & D. R. R. v. Morris, 31 Gratt. 200 ; Damont v. N. O. & C. R. R., 9 La. An. 441 ; I. C. R. R. v. Able, 59 111. 131 ; J. R. R. v. Swift, 26 Ind. 459; E. & C. R. R. v. Duncan. 28 Ind. 111 ; I. C. R. R- v. Slatton, 54 111. 133 ; O. & M. R. R. v Schiebe, 44 111. 460 ; H. & T. C. R. R. v. Schmidt, HI Tex. 282, 21 Am. & Eng. R. R. Cas. 345; Adams v. L. & X. R. R., Ky. , 21 Am. & Eng. R. R. Cas. 380; S. & N. A. R. R.v. flchaufler, 75 Ala. 136, 21 Am & Eng. R. R. Cas. 405. 1 D., S. P. & P. Ry. v. Pickard, 8 Colo. 163, 18 Am. & Eng. R. R. Cas. 284. a A. G. S. Ry. v. Hawk, 72 Ala. 112, 18 Am. & Eng. R. R. Cas. 194. 1 C. R. R. & B. Co. v. Letcher, 69 Ala. 106, 12 Am. & Eng. R. R. Cas. 115. 266 ALIGHTING FROM CAR AT EEST. motion a freight train standing on the line render it liable to a passenger who, having left his train, attempts to pass under the coupling which connects two of the cars of the freight train. 1 261. While it is the duty of a railway company to provide reasonably safe and convenient means of ingress and egress from its cars and carriages, the railway is only to be held liable for accidents happening to its passengers in descending from a car when at rest at a station, if the circumstances are such as to induce the passenger to believe that he has reached his point of destination, and that it is safe for him to get out. 2 In contrasting the American and English decisions, the difference in the mode of construction between railway carriages commonly used in England and American passenger cars must be borne in mind. Thus, in Foy v. L. B. & S. C. R. R., 3 by reason of the occupation of the platform by another train, the carriage in which the plaintiff was a passenger on reaching its terminus in the daytime did not come up to the platform. The door of the carriage being some three feet above the ground, the defendant's porter requested the plaintiff, a female passenger, to alight. There w T ere two steps, one on a level with the door, and the other one eighteen 1 M. & C. R. R. v. Copeland, 61 Ala. 376. 2 Foy v. L. B. & S. C. Ry., 18 C. B. N. S. 225, 114 E. C. L. ; Praeger v B. & E. Ry., 24 L. T. N. S. 105 ; Cockle v. L. & S. E. Ry., L. R. 5 C. P. 457, 7 Id. 321 ; Weller v. L. B. & S. C. Ry., L. R. 9 C. P. 126 ; Bridges v. N. L. Ry., L. R. 7 H. L. 213; Robson v. N. E. Ry., L. R. 10 Q. B. D. 371 ; Rose v. N. E. Ry., 2 Ex. D. 248 ; Foulkes v. M. D. Ry., 4 C. P. D. 267, 5 Id. 157 ; P. R. R. r. White, 88 Penna. St. 327 ; T. H. & I. Ry. v. Buck, 96 Ind. 346, 18 Am. & Eng. R. R. Cas. 234 ; Cartwright v. C. & G. T. Ry., 52 Mich. 606, 16 Am. & Eng. R. R. Cas. 321 ; C. & I. C. R. R. v. Farrell, 31 Ind. 408 ; Gaynor v. O. C. & N. Ry., 100 Mass. 208 ; Brooks v. B. & M. R. R., 135 Mass. 21, 16 Am. & Eng. R. R. Cas. 345; Edgar v. N. R. R., 4 Ont. 201, 16 Am. & Eng. R. R. Cas. 347; C. R. R. v. Van Horn, 38 N. J. Law 133; Edgar v. N. R. R., 11 Ont. App. 452, 22 Am. & Eng. R. R. Cas. 433. 8 18 C. B. N. S. 225, 114 E. C. L. ALIGHTING FROM CAR AT REST. 267 inches below that. The plaintiff got on the first step, and taking the hand of a gentleman jumped to the ground, and being in delicate health the concussion in- jured her spine. Erie, C. J., left it to the jury to say whether the accident was due to the plaintiff's careless- ness, or to the defendant's negligence in not providing a convenient means of descent. There was a verdict for the plaintiff, and the court refused a new trial. In Praeger v. B. & E. Ry., 1 the train had after dark drawn up at a dimly lighted station, the platform not being parallel to the rails, but by reason of its being beveled off to make room for a siding, being some two feet away from the carriage in which the plaintiff, a male pas- senger, was riding. A guard opened the door, and said nothing, and the plaintiff, believing that he was stepping upon the platform, stepped out and fell between the car- riage and the platform. Judgment on a verdict for the plaintiff was affirmed in the Exchequer Chamber on the ground that there was evidence of negligence on the part of the defendant in that the station was dimly lighted, the platform was defectively constructed, and the defendant's servant omitted to warn the passenger not to alight. In Cockle v. L. & S. E. Ry., 2 the facts were identical with those in Praeger's case, excepting that no guard had opened the carriage door, and it was held in the Exchequer Chamber that " the leaving a car- riage which had been brought up to a place at which it is unsafe for a passenger to alight, under circumstances which warrant the passenger in believing that it is in- tended he shall get out, and that he may, therefore, do so with safety, without any warning of his danger, amounts to negligence on the part of the company." In Weller v. L. B. & S. C. R. R., 3 the train after dark 1 24 L. T. N. S. 105. a L. R. 5 C. P. 457, 7 Id. 321. » L. R. 9 C P. 126. 2G8 ALIGHTING FROM CAR AT REST. was approaching a station, the lamps of which were not lit, when the porter having called out the name, the train overshot the platform and came to a final stop. The plaintiff, a male passenger, and a commuter, hear- ing the doors open and shut and seeing persons getting out of the next carriage, stepped out and was hurt. At the trial he was nonsuited, but a rule to take off the nonsuit was made absolute, upon the ground that the defendant was negligent in stopping its train at a point where the lights were not lit, and in not warning the passenger not to alight. In Bridges v. N. L. Ry., 1 Highbury Station was at the mouth of a tunnel, the platform extending into the tunnel. The train arrived after dark, the carriage in which the plaintiff, a com- muter, was riding having stopped in the tunnel, but not at the platform, and the name of the station having been called by the guard. The plaintiff's decedent fell in getting out of the carriage, and died from the in- juries thereby caused. It was held sufficient evidence of defendant's negligence for the jury. In Robson v. N. E. Ry., 2 the facts were identical with those in Lewis' case, and it was held by the Queen's Bench and by the Court of Appeal that the defendant was negligent in not stopping the carriage at the platform, and that the plaintiff had a right to suppose that if she did not get out the train would proceed, and that the defendant was also negligent in not providing some safe means for women to alight. In Rose v. N. E. Ry., 3 the train had stopped at a station ; the carriage in which the plain- tiff, a female passenger, was riding being beyond the platform. The porter called to the passengers to keep their seats. The plaintiff waited some time, but the train not having backed, she got out, and in so doing 1 L. R. 6 Q. B. 377, 7 H. L. 213. J L. R. 10 Q. B. 271. 8 2 Ex. D. 248. ALIGHTING AT STATIONS. 269 was injured. The jury found for the plaintiff, and leave was given to the defendant to move to enter a nonsuit. The court below entered the nonsuit, but the Court of Appeal reversed and entered judgment for the plaintiff, holding that the company was negli- gent in not backing its train, or in not providing ser- vants to assist the passengers in getting out. In Foulkes v. M. D. Ry., 1 the door of the carriage in which the plaintiff travelled was about two feet three inches above the platform of the station at which the plaintiff was to alight. Although it was after dark, and the carriage had neither platform nor steps, no warning was given to the plaintiff as to the depth of descent from the car- riage to the platform, and in getting out he fell and was injured. It was held that there was evidence of negli- gence on the part of the defendant. In P. R. R. v. White, 2 the defendant's train on approaching Penn Valley Station slowed up and stopped opposite a house marked " Penn Valley Station," the brakeman having announced before the train came to a stop, " the next station is Penn Valley." The plaintiff's decedent stepped off the car after it had come to a stop on the side towards the platform, but separated from the plat- form by another track, and was struck by a passing express train and killed. The train had stopped under the company's rules that local trains should give way to express trains at stations, the regular station being on the right side of the train and some distance from where the train had stopped. The court below entered judgment on the verdict for the plaintiff, and the Supreme Court affirmed it on the ground that it was for the jury to say whether, under the circumstances, the plaintiff had a right to suppose that the train had 1 L. B. 4 C. P. D. 267, 5 Id. 157. ■ 88 Penna. St. 327. 270 ALIGHTING AT STATIONS. come to a final stop at his point of destination. In C. & I. C. B. R. v. Farrell, 1 the railway was held liable to a passenger who was injured in alighting from the cars at night, the train having come to a stop on a bridge over a culvert, and a railway servant having called out the name of the station. 262. On the other hand, where a passenger, in the exercise of reasonable care, can see that by getting out then and there in his own way, he is encountering a peril, the railway is not liable. 2 Thus, in Siner v. G. W. By., 3 the facts were similar to those in Foy's case, ex- cepting that no servant of the defendant requested the plaintiff to alight. At the trial the plaintiff was non- suited, and the Exchequer Chamber affirmed the refusal of the court below to take it off, upon the ground that there was no evidence of negligence upon the part of the defendant, the accident having been solely caused by the plaintiff's own negligence in disregarding her duty to use the conveniences provided by the company, Hannen, J., saying : " other people got down without injury. It is true the female plaintiff said she could not. But she does not say why she could not. Sup- pose she had said so of an ordinary platform. The bare assertion would not be enough ; and applying the common knowledge we all have as to the construction of carriages, I think it lay upon the plaintiff to show more special reason why it was dangerous or impossible to use the footboard, so as to make it negligence on the part of the company not to provide some other means of alighting;" and Mellor, J., added, "the evidence 1 31 Ind. 408. 1 Siner v. G. W. Ry., L. R. 3 Ex. 150, 4 Id. 117 ; Lewis v. L. C. & D. Ry., L. R. 9 Q. B. 66; D., L.&W. R. R. v. Napheys, 90 Penna. St. 135 ; P. R. R. v. Zebe, 33 Td. 318, 37 Id. 420 ; E. & C. R. R. v. Duncan, 28 Ind. 441 ; Mitchell v. C. & G. T. Ry., 51 Mich. 236 ; Frost v. G. T. Ry., 10 Allen 387. "L.R. 3 Ex. 150, 4 Id. 117. ALIGHTING AT STATIONS. 271 seems to me to establish, not negligence, but only a less degree of convenience than is usual, and for that the defendants are not responsible." In Lewis v. L. C. & ^ D. Ry., 1 a female passenger for Bromley, while the train was passing after dark through the station, which she knew well, heard the name of the station called by the guard ; the train then stopped, with the carriage in which the plaintiff was riding, at a point beyond the platform. The plaintiff attempted to get out, and at that moment the train started to back to the platform, and the plaintiff fell and was injured. The plaintiff was nonsuited. In D., L. & W. R. R. v. Napheys, 2 the facts were identical with those in Foy's and Siner's cases, and it was held that there was no evidence of negligence upon the part of the defendant, Sterrett, J., saying, in his judgment: "the cars were at rest on the track; there was no jar or breaking of machinery. Mrs. Napheys, with the assistance of her husband, was descending the steps from the platform of the car. They had every opportunity of seeing and knowing where she was going, and controlling her movements. If the lower step were inconveniently or dangerously high for her in the condition she was, she and her hus- band has as good an opportunity as any one else of knowing the fact. If they had even a suspicion that it was in the least degree unsafe for her to take the last step, there was no urgent necessity for her to do so. The train had reached its destination, and there was no occasion for haste in leaving the car. If they had any apprehension of danger, or even of inconvenience in descending from the lower step, there was nothing to prompt them to incur the risk. They might have called on those in charge of the train to provide a better and more convenient means of egress if they 1 L. E. 9 Q. B. 70. * 90 Penna. St. 135. 272 ALIGHTING AT STATIONS. deemed it necessary." In P. R. R. v. Zebe, 1 the plain- tiff sued to recover damages for the death of his son. The plaintiff and his son were passengers on a train which stopped at its destination at the station platform. At that point the defendant's line had two tracks, and the j^laintiff and his son, instead of getting out upon the platform side of the train, got out upon the other side, and the son was killed by a train passing upon the other track. The case was twice tried, and came twice before the Supreme Court, the jury finding for the plaintiff upon each occasion, the court below entering judgment on the verdict, and the Supreme Court re- versing. In the first report the judgment was reversed, because the court below left the case to the jury without proof of any necessity justifying the plaintiff and his son in descending from the car upon the side away from the platform. In the second report, the judgment was reversed because the court below admitted the evi- dence of two witnesses that they were in the habit, at that station, of getting out from that side which was away from the platform. And in each report, it was held that the duties of the carrier and the passengers are reciprocal, the carrier being bound to provide a " safe and convenient means of egress and regress to and from the line of their road," and the duty of the passenger being to comply with "all the company's reasonable rules and regulations for entering, occupying and leaving the cars." Nor is the railway, when its train is stopped at night before coming up to a station, liable to one who, having boarded the train to look for his wife and child, whom he expected to find as passen- gers on the train, carelessly steps off a car platform into a culvert, which he did not see in the darkness. 2 1 33 Penna. St. 318, 37 Id. 420. Stiles v. A. & W. P. E. R., 65 Ga. 370, 8 Am. & Eng. E. R. Cas. 195. ALIGHTING AT STATIONS. 273 ' 263. It is not possible to reconcile all the cases, and some two or three of the English cases might have been differently decided if the judges who decided them had not misapprehended the force and effect of the decision of the House of Lords in Bridge's case as to the re- spective provinces of the court and the jury. But there is one broad ground of distinction running through the cases which serves to reconcile most of them, and that is, that while it is the duty of a railway to provide reasonably safe and convenient means of ingress and egress from its cars and carriages, the railway is only to be held liable for accidents happening to passengers in descending from its cars at rest when the circumstances are such as to induce a passenger to believe that he has reached his point of destination, and that it is safe for him to get out. In this category are the cases of Praeger, Cockle, Weller, Bridges, Bobson, Kose, Foulke, White, and similar cases. On the other hand, the com- pany is not to be held liable where the passenger, in the exercise of reasonable care, can see that by getting out then and there in his own way he is encountering peril. This is the result of the cases of Siner, Lewi's, Napheys, Zebe, and similar cases. 264. It is not necessarily contributory negligence in a passenger to attempt to enter or leave a car at rest when it is not in position at the platform ; ] and espe- cially is this the case when the railway has usually per- mitted passengers to so enter its cars. 2 265. It is the duty of a railway operating street cars to allow to passengers a reasonable opportunity to alight 1 Stoner v. Penna. Co., 98 Ind. 384, 21 Am. & Eng. R. R. Cas. 340; Keating v. N. Y. C. & H. R. R. R., 49 N. Y. 673 ; Phillips v. R. & S. R. R , 57 Barbour 644. * McDonald v. C. & N. W. Ry., 26 Iowa 124. 18 274 railway's duty in operating line. from the cars ; l and the passenger on a street car should give to the servant in charge of the car a reasonable notice of his intention to alight; 2 but when the car has come to a stop, a passenger is justified in attempting to alight, and it is immaterial that he did not request the conductor to make the stop for him, or notify the con- ductor that he intended to get off then and there. 3 X. THE DUTY OF THE RAILWAY TO ITS PASSENGERS IN THE OPERATION OF ITS LINE. 206. That duty of care for their safety which the railway owes to its passengers requires it to use in the operation of its line every precaution which the expe- rience of well-managed railways has shown to be essen- tial to the transportation of passengers in safety. The railway is, therefore, liable whenever a passenger is in- jured, without fault on his part, by its negligent con- duct of its business ; as, for instance, by a collision be- tween trains on the line, 4 or by a collision between a train and cars on a siding ; 5 or between two street cars; 6 or by a derailment of the train carrying the passenger; 7 1 C. C. Ry. v. Mumford, 97 111. 560 ; Wardle v. N. O. C. R. R., 35 La. An. 202, 13 Am. & Eng. R. R. Cas. 60; Knowlton v. M. C. R. R., 59 Wise. 278, 16 Am. & Eng. R. R. Cas. 330 ; Ward v. C. C. R. R., 19 Shand (S. C.) 521, 16 Am. & Eng. R. R. Cas. 356. 1 Mulhado v. B. C. R. R., 30 N. Y. 370; Oram v. M. R. R., 112 Mass. 38; Nichols v. M. R. R., 106 Id. 463. 3 C. W. D. Ry. v. Mills, 105 111 63, 11 Am. & Eng. R. R. Cas. 128 ; Rathbone v. U. R. R., 13 R. I. 709, 13 Am. & Eng. R. R. Cas. 58. * Skinner v. L. B. & S. C. Ry., 5 Ex. 787 ; I. R. R. v. Mowery, 36 Ohio St. 418, 3 Am. & Eng. R. R. Cas. 361 ; N. O., J. & G. N. R. R. v. Albertson, 38 Miss. 242. 5 N. Y., L. E. & W. R. R. v. Seyholt, 95 N. Y. 562, 18 Am. & Eng. R. R. Cas. 162 ; Farlow v. Kelly, 108 U. S. 288. 8 Smith v. St. P. C. Ry., 32 Minn. 1, 16 Am. & Eng. R. R. Cas. 310. » Carpue v. L. & B. Ry., 5 Q. B. 747, 48 E. C. L. ; Dawson v. M. Ry., 7 H. & N. 1037 ; Sullivan v. P."& R. R. R., 30 Penna. St. 234 ; N. Y., L. E. & W. R. R. v. Daugherty, 11 Weekly Notes of Cases (Penna.) 437 ; Edgerton v. N. Y. C. DUTY IN OPERATING LINE. 275 or by an explosion of the boiler of a locomotive ;* or by a negligent coupling of another car to that in which the passenger is carried, so that the passenger is injured by the jar; 2 or by the knocking of a gate bar at a crossing against a train by a runaway team ; 3 or by a jet of water thrown from a water tank upon a pas- senger; 4 or by a jet of steam thrown on a passenger in leaving a steamboat which the railway operates as a part of its line ; 5 or by a collision with a coal bin in too close proximity to the line. 6 So also the railway is liable when its servants, being aware that a bridge, which constitutes part of the line, has been carried away by a flood, do not take the proper means to stop an approaching train; 7 or where repairs to a line are so negligently conducted that a collision ensues oetween a passenger train and a construction train. 8 So the railway is liable for injuries to a passenger in entering a street car, caused by its negligence in banking up on the sides of its line snow which it had removed there- from. 9 So, also, the railway is liable for negligently & H. R. R. R., 39 N.Y. 227; Festal v. M. R. R, 109 Mass. 720; George v. St. L., I. M. & S. R. R., 34 Ark. 613, 1 Am. & Eng. R. R. Cas. 294 ; P., C. & St. L. Ry. v. Williams, 74 Ind. 462 ; G, C, G & I. Ry. v. Newell, 75 Id. 542 ; Gurtis v. R. & S. R. R., 18 N.Y. 534; Tuttle v. G, R. I. & P. Ry., 48 Iowa 236; Brignoli v. G & G. E. R. R., 4 Daly (N. Y.) 182; G, B. & Q. R. R. v. George, 19 111. 510 ; L. R. & F. S. Ry. v. Mills, 40 Ark. 298, 13 Am. & Eng. R. R. Cas. 10 ; Yonge v. Kerrney, 28 Ga. Ill ; T. & St. L. R. R. v. Suggs, 62 Tex. 323, 21 Am. & Eng. R. R. Cas. 475 ; K. G R. R. v. Thomas, 79 Ky. 160, 1 Am. & Eng. R R. Cas. 79 ; Brown v. N. Y. G R. R., 34 N. Y. 404 ; G, R. I. & P. Ry. v. McAra, 52 111. 296 ; N. & G R. R. v. Messino, 1 Sneed (Tenn.) 220. 1 Robinson v. N. Y. C. & H. R. R. R., 20 Blatchf. 338. 1 White v. F. R. R., 136 Mass. 321. 3 Tyrrel v. E. R. R., Ill Mass. 546. * T. H. & I. R. R. v. Jackson, 81 Ind. 19, 6 Am. & Eng. R. R. Cas. 178. 5 Gruber v. W. & J. R. R., 92 N. G 1, 21 Am. & Eng. R. R. Cas. 438. 6 Dickinson v. P., H. & N. W. R. R., 53 Mich. 43, 21 Am. & Eng. R. R. Cas. 456. 7 Lambkin v. S. E. Ry., 5 App. Cas. 352. 8 Matteson v. N. Y. G R. R., 35 N. Y. 487. 8 Dixon v. B., C. & N. R. R., 100 N.Y. 171. 276 SPEED OF TRAIN. bringing a train to a stop at the crossing of anothei Line in such a position that a passenger in or on its car is injured by a collision with cars negligently moved on that other line. 1 So the railway is liable for injuries caused by the absence of a bell rope by which the train might have been stopped ; 2 or by which the passenger might have communicated with the guard; 3 and the railway is liable for injuries caused by the fall of a negligently constructed berth in a sleeping-car. 4 Illus- trations might be multiplied indefinitely, but it is not necessary, for the result of the authorities is simply this, that the railway is liable for the injury incurred by the passenger in the operation of the line, whenever it is shown that that injury was caused either by the railway's omission of some precaution which it was bound to take for his protection, or by the commission of a negligent act by some one for whose acts the rail- way is legally responsible. 267. No rate of speed, however high, can be said to be necessarily negligence as to passengers in the train; 5 but, of course, nothing will justify a high rate of speed under conditions of danger. 6 Thus, where the line is out of repair, it is negligence to run trains at a high rate of speed. 7 So, in White v. M. C. Ry., 8 it was held to be negligence with regard to a passenger in a street rail- way, to run its car at a high rate of speed over rails 1 Kellow v. C. I. E. E., Iowa , 21 Am. & Eng. E. E. Cas. 485. See also P. P. Ey. v. Weiller, 17 Weekly Notes of Cases (Penna.) 306. * M. E. E. v. Ashcraft, 48 Ala. 16, 49 Id. 305. s Blamires v. L. & Y. Ey , L. E. 8 Ex. 283. * Penna. Co. v. Eoy, 102 U. S. 451 ; C, C, C. & I. E. E. v. Walrath, 38 Ohio St. 461. 8 Am. & Eng. E. R. Cas. 371. 5 G. E. & I. E. E. v. Huntley, 38 Mich. 537. « O, C, C. & I. E. E. v. Newell, 75 Ind. 542, 3 Am. & Eng. E. E. Cas. 483. 7 P. P. & J. E. E. v. Eeynolds, 88 111. 418 ; O. & M. Ey. v. Selby, 47 Ind. 471 ; M. P. Ey. v. Collier, 62 Tex. 318, 18 Am. & Eng. E. E. Cas. 281. 8 61 Wise. 536, 18 Am. & Eng. E. E. Cas. 213. SPEED OF TRAIN. 277 unguarded by frogs, at the entrance to a swinging bridge. So, in Ellett v. St. L, K. C. & N. By., 1 the railway was held to be negligent as regards a passenger who was injured by a derailment of the train consequent upon a sinking of the track in a flood, the engine- driver having run the train at a high rate of speed under conditions of danger ; so in I., B. & W. B. B. v. Hall, 2 a jury were permitted to find the railway negli- gent as to a passenger in a train which was derailed by striking a cow on a straight line of track on a prairie, because the train was running, soon after daybreak of a foggy morning, upon its schedule time, fifty miles an hour, the judge, at the trial, having left to the jury the question whether or not, under the circumstances, the rate of speed was negligent. The test of the proxi- mateness or remoteness of the speed as a cause of in- jury in any case of collision or derailment is to be found in the answer to the question, was or was not that speed prudent under the circumstances, as those circum- stances either were, or ought to have been known, to the servant who directed the movement of the train ? 268. The railway is also liable to its passengers for injuries caused by the negligent closing of a door of a car by a servant of the railway. Thus in Fordham v. B. & S. C. By., 3 the plaintiff, while entering the de- fendant's carriage after dark, holding a parcel in his right hand, placed his left hand upon the open door of the carriage, and a guard from without closed the door, and in so doing injured the plaintiff's left hand; and it was held that the plaintiff was entitled to recover. 4 So, in G. H. & S. A. B. B. v. Davidson, 5 where the plain- 1 76 Mo. 518. 2 106 111. 371, 12 Am. & Eng. R. R. Cas. 146. 8 L. R. 3 C. P. 368, 4 Id. 619. * See also Coleman v. S. E. By., 4 II. & C. 699. 6 61 Tex. 204, 21 Am. & Eng. R. E. ( '.is. 431. 278 CAR DOORS. tiff sued for injuries received in an ordinary American saloon car, by the act of a railway servant in closing the door upon the plaintiff's hand, it was held that it was for the jury to determine whether or not the act of the servant was negligent, regard being had to the plaintiff's position at the time of the injury, and the knowledge which the servant had of the possibility of injury to the plaintiff by reason of the closing of the door. On the other hand, in Richardson v. Metropoli- tan By., 1 a plaintiff, having entered a carriage, permitted his hand to remain upon the door for some half a minute, and the defendant's porter, having first called, " Take your seats," closed the door, and injured the plaintiff's hand ; and it was held that the defendant was not liable, the porter having closed the door in the ordinary exercise of his duty after due warning, and the sole cause of the injury being the plaintiffs negligence in permitting his hand to remain on the door after he had entered the carriage. So, in Jackson v. M. Ry., 2 it was held, in the House of Lords, affirming the Court of Appeal and reversing the Common Pleas, that, where the plaintiff had been injured by reason of having risen in an overcrowded carriage to prevent the entry of more passengers, the door being hastily closed by the defendant's servant upon the plaintiff's hand, the rail- way was not liable. In Richardson's and in Jackson's cases, the injury was done by an act of a servant in the course of his duty, and not negligently performed, and injury resulted to the passenger only because he himself was negligent ; while in Fordham's case the servant closed the door upon a passenger in the act of entering the car ; and in Davidson's case there was evidence from which the jury might properly, and did, in fact, 1 L. R. 3 C. P. 374. * L. R. 10 C. P. 49, 2 C. P. D. 125, 3 App. Cas. 193. CAR DOORS. 279 find that the servant ought to have seen the position in which the plaintiff was standing. The distinction, therefore, is that the passenger is entitled to recover for such injuries when they result from carelessness on the part of the railway's servant, the passenger not con- tributing to the accident by any imprudent act on his part. 269. A passenger has the right to assume that the doors of the car are reasonably secure, thus, in Gee v. M. Ry., 1 the plaintiff, having risen from his seat in the carriage for the purpose of looking at the signal lights upon the line, put his hand on the bar across the win- dow ; the door flew open, and the plaintiff fell out and was injured, and it was held that he was entitled to recover, for he might reasonably suppose that the door had been properly shut by the defendant's servants, and that he could with safety lean upon it. So, in W. M. R. R v. Stanley, 2 a passenger was held entitled to recover for injuries received in attempting to close the door of his car while passing through a tunnel, the railway having omitted to light the car, and the open door inconveniencing the plaintiff and the other pas- sengers in the car by its admission of smoke and cin- ders. On the other hand, in Adams v. L. & Y. Ry., 3 the door of the carriage in which the plaintiff was riding would not remain shut while the train was in motion, but there was room enough for the plaintiff to sit away from the door, and the weather was good. The plaintiff, having shut the door three times, at- tempted, for the fourth time, to close it within three minutes of the time of arrival of the train at a station, and, in so doing, he fell out and was injured. Judg- ment was entered for the defendant upon the ground 1 L. R. 8 Q. B. 161. * 61 Md. 266, 18 Am. & Eng. R. R. Cas. 206. » L. R. 4 C. P. 739. 2S0 DISORDERLY PASSENGERS. that, as the inconvenience to the plaintiff from the open door was slight, and the peril in attempting to close it •was considerable, the injury resulting from that attempt was caused solely by his own carelessness ; but in the later case of Gee v. M. Ry., 1 Adams v. L. & Y. Ry., is commented upon, and the application to the facts of that case of the doctrine as above stated questioned. 270. It is both the right and the duty of the railway to remove from its cars disorderly passengers whose misconduct endangers the safety of their fellow-passen- gers ; 2 but the duty of the railway to its passengers does not require it to maintain a police force, either at its stations or on its cars, for the supjoression of riots, or the prevention of any possible breach of the peace ; thus, in P., N., N. C. R. R. v. Hinds, 3 the plaintiff, a female, having been injured in the course of a fight between a number of drunken men, who, at a station, had forced themselves into the defendant's car and usurped the control thereof, it was held that the defendant was not liable, for its duty was to provide servants enough for the ordinary conduct of its transportation business, but not to provide police, and the conductor, not having voluntarily admitted the creators of the disturbance, but having been overpowered by them, the defendant was not to be held liable. On the same principle it was held in Cannon v. M., G. W. Ry., 4 that a railway is not liable for injuries caused by the disorderly con- duct of a mob who had taken possession of a station platform. So also, in Putnam v. B. & S. A. R. R., 5 a railway was held not to be responsible for a wilful assault by one passenger causing the death of another 1 L. R. 8 Q. B. 161. 7 Ry. v. Valleley, 32 Ohio St. 345 ; P., C. & St. L. Ry. v. Vandyne. 57 Ind. 576 ; R, P. & C. R. R. v. McDonald, 68 Ind. 316 ; Leraont v. W. & G. R. R., I Mackey (D. C.) 180, 1 Am. & Eng. R. R. Cas. 263. 1 53 Penna. St. 512. * 6 Irish C. L. 199. 6 55 N. Y. 108. DISORDERLY PASSENGERS. 281 passenger, where the servants of the railway had no knowledge of the character or disposition of the wrong- doer, and no reason to apprehend that he would com- mit an act of violence. Nor is the railway liable to a passenger for the value of securities of which that pas- senger is robbed by violence as he is leaving the train on its arrival at a station. 1 Nevertheless, the duty of the railway requires it to protect its passengers from the disorderly acts of other passengers and of strangers, provided that the parties causing the disorder are not sufficiently numerous or strong to overthrow the au- thority of the railway servants ; for in such a case the servants are negligent in not removing or controlling the disorderly persons ; thus, in P. & C. E-. R. v. Pil- low, 2 where the plaintiff had been injured in the course of a fight in defendant's car between two other passen- gers, defendant's servants negligently omitting to restore order, it was held that the plaintiff was entitled to recover. 3 Upon the same principle the railway is liable to a passenger, who, while alighting at a station is pushed off the steps of the car by a crowd of passengers. 4 The railway is also liable for injuries done to its pas- sengers by the wrongful and wilful acts of its servants, if the railway has been negligent, either in its selection or retention of the wrongdoer in the service ; or if it has subsequently ratified the servant's unauthorized act by retaining him in the service, and a fortiori promoting him, after his wrongful act has been brought to the " Weeks v. N. Y., N. H. & H. R. R., 72 N. Y. 50. 2 76 Penna. St. 510. 3 See also, Flint v. N. & N. Y. T. Co., 34 Conn. 554 ; Britton v. A. & C. R. R., 88 N. C. 536, 18 Am. & Eng. R. R. Cas. 391 ; Hendricks v. S. A. R. R., 44 N. Y. Sup. Ct. 8 ; N. O., St. L. & C. R. R. v. Burke, 53 Miss. 200 ; King v. O. & M. Ry. (U. S. C. C. Ind.), 18 Am. & Eng. R.R. Cas. 386. * Treat v. B. & L. R. R., 131 Mass. 371, 3 Am. & Eng. R. R. Cas. 423 ; Ho- gan v. S. E. Ry., 28 L. T. N. S. 271. 282 SUDDEN JOLTS, ETC. knowledge of liis superior officer. But if the railway has not expressly or impliedly authorized or ratified the act, or been negligent in the selection or retention of the wrongdoer, it cannot be held liable for his wilful act. , 271. The railway is likewise liable for injuries to passengers in its cars caused by a sudden jolting of the car in starting or coming to a stop, and in such cases it is for the jury to say whether or not the plaintiff was contributorily negligent in rising from his seat before the car had stopped. 1 It is the duty of the railway to provide seats for the passengers whom it undertakes to carry; 2 but the mere failure to provide a seat for a passenger is not such negligence as will render a rail- way responsible to the passenger, if he, while standing, be thrown down without negligence upon the part of the railway. 3 It has, however, been held that the rail- way is liable to a passenger, who, having entered a crowded car, and no seat being obtainable, rode upon the platform, and was injured while upon the platform ; 4 but these decisions seem to be open to criticism upon the grounds stated in the next section. XI. CONTRIBUTORY NEGLIGENCE OF PASSENGERS. 272. It is well settled that a passenger who, volun- tarily and unnecessarily, places himself in a position of 1 N. J. R. R. v. Pollard, 22 Wall. 341 ; C. & P. S. Ferry Co. v. Monaghan, 10 Weekly Notes of Cases (Penna.) 46 ; W. P. P. Ry. v. Whipple, 5 Id. 68 ; Barden v. B. C. & F. R. R., 121 Mass. 436 ; Worthen v. G. T. Ry., 125 Id. 99 ; Geddes v. M. R. R., 103 Id. 391 ; Spearman v. C. St. R. R., 57 Cal. 432, 8 Am. & Eng. R. R. Cas. 193 ; M. P. R. R. v. Marten, Tex. , 22 Am. & Eng. R. R. Cas. 409; Dougherty v. M. R. R., 81 Mo. 325, 21 Am. & Eng. R. R. Cas. 497. 2 L. & N. R. R. v. Kelly, 92 Ind. 371, 13 Am. & Eng. R. R. Cas. 1. 3 Burton v. W. J. Ferry Co., 114 U. 8. 474. * Werle v. L. I. R. R.,98 N. Y. 650 ; Colegrove v. H. & N. H. R. R., 20 Id 492 ; Willis v. L. I. R. R., 34 Id. 670 ; Collins v. A. & S. R. R., 12 Barb. 492. passenger's negligence. 283 danger cannot hold the railway responsible for injuries of which his position is the efficient cause, as, for instance, where his injuries result from his crossing the line in front of a moving train whose approach is known to him ; x or from his returning, after a successful escape, to a burning car in order to recover a valise which had been left behind ; 2 or from his riding on an engine, 3 or from his riding on a frieght car instead of in the caboose, and while there incurring increased danger in adjusting a falling load of timber ; 4 or from his walking on the track in a railway yard; 5 or from his crossing on the plat- form of a car of a freight train, apparently ready to start, in order to reach the passenger train, and without notice to those in charge of the freight train ; 6 or from his going on the line, after alighting from a train at a station and standing for a necessary purpose, and with- out notice to the railway servants on the track behind freight cars which are liable to be moved ; 7 or from his crawling under and between the wheels of a freight train in leaving a railway station; 8 or from his riding on the platform of a moving car before the train comes to a stop; 9 but as before stated, it has been held that 1 B. & O. E. R. v. State, 60 Md. 449 ; Falkner v. G. S. & W. Ry., 5 I. C. L. 213. 2 Hay v. G. W. Ry., 37 Up. Can. (Q. B.) 456. 8 Robertson v. E. Ry., 22 Barb. 91 ; B. & P. R. R. v. Jones, 95 U. S. 439 ; Rucker v. M. P. R. R., 61 Tex. 499, 21 Am. & Eng. R. R. Cas. 245 ; Daggett v. I. C. R. R., 34 Iowa 284; c/. W. St. L. & P. Ry. v. Shacklet, 105 111. 364, 12 Am. & Eng. R. R. Cas. 166. 4 Sherman v. H. & St. J. R. R., 72 Mo. 62, 4 Am. & Eng. R. R. Cas. 589; Player v. B., C, R. &. A. R. R., 62 Iowa 723, 12 Am. & Eng. R. R. Cas. 112. 5 Henry v. St. L., K. C & N. Ry., 76 Mo. 288, 12 Am. & Eng. R. R. Cas. 136 ; Hallihan v. II. & St. J. R. R., 71 Mo. 113, 2 Am. & Eng. R. R. Cas. 117 ; Johnson v. B. & M. R. R., 125 Mass. 75. 6 C, B. & Q. Ry. v. Dewey, 26 111. 255 ; Lewis v. B. & O. R. R., 38 Md. 588 ; Gahagan v. B. & L. R. R., 1 Allen 187. i Van Schaick v, H. R. R. R., 43 N. Y. 527. 8 M. & C. R. R. v. Copeland, 61 Ala. 376 ; C. R. R. v. Dixon, 42 Ga. 327. 9 Secor v. T., P. & W. Ry., 10 Fed. Rep. 15; I. C. Ry. v. Green, 81 111, 19; 284 passenger's negligence. the failure of the railway to perform its duty of provid- ing the passenger with a seat will excuse his contribu- tory negligence in riding on the platform, 1 yet this doctrine cannot be regarded as reasonable, for if the passenger cannot obtain a seat he may stand within the car, or he may refuse to proceed on the journey, and may hold the railway responsible for the damages re- sulting from its breach of contract; but injuries result- ing primarily from his voluntarily putting himself in a position of such obvious danger as that of riding on the platform of a car in motion cannot be said to have been proximately caused by the railway's failure to pro- vide him with a seat. 273. It is also contributory negligence in the passen- ger to put his head or arm out of the window of a car in motion. 2 On the other hand, in N. J. E. R. v. Ken- nard, 3 the railway was held to be negligent because it did not so bar its windows as to physically prevent passengers from putting their heads or arms through those windows, but that case is overruled by the later cases in Pennsylvania. In C. & A. R. R. v. Pondrom, 4 it was held that the negligence of the passenger in per- mitting his arm to rest on the window sill and to extend outside was slight in comparison with the negligence of the railway in permitting cars on different tracks to be Blodgett v. Bartlett, 50 Ga. 353 ; A. G. S. Ry. v. Hawk, 72 Ala. 12 ; C. & A. R. R. v. Hoosey, 99 Penna. St. 492; Hickey v. B. & L. R. R., 14 Allen 429; Quinn v. I. C. R. R., 51 111. 495 ; M. & W. R. R. v. Johnson, 38 Ga. 409 ; P. R. I. & St. L. R. R. v. Coultas, 67 111. 398. 1 Willis v. L. I. R. R., 34 N. Y. 670; Zemp v. W. & M. R. R., 9 Rich. L. 84; Maguire v. M. R. R., 115 Mass. 239. 2 Todd v. O. C. R. R., 3 Allen 18, 7 Id. 207 ; P. R. R. v. McClurg, 56 Penna. St. 294 ; I. & C. R. R. v. Rutherford, 29 Ind. 83 ; P. & C. R. R. v. Andrews, 39 Md. 329 ; Holbrook v. U. & S. R. R., 1 2 N. Y. 236 ; Dun v. S. & R. R. R., 78 Va. 645, 16 Am. & Eng. R. R. Cas. 363; L. & N. R. R. v. Siekinge, 5 Bush. (Ky.) 1 ; Dale v. D., L. & W. R. R., 73 N. Y. 468. 8 21 Penna. St. 203. * 51 111. 333, passenger's negligence. 285 in such close proximity as to cause the injury for which the plaintiff sued, and that, therefore, under the doc- trine of comparative negligence the plaintiff was entitled to recover. In Spencer v. M. & P. I. C. R. R., 1 Win- ters v. H. & St. J. R. R., 2 and Summers v. C. C. R. R., 3 it is held that it is not necessarily contributory negli- gence in a passenger to put his head or arm out of a car window, and that it is for the jury to decide whether or not, under all the circumstances of the particular case, the act is so negligent as to bar his recovery. The right doctrine seems to be that of Todd v. O. C. R. R., and the cases of its class, for the placing by a passenger of any portion of his person outside of the window of a car in motion is so obviously dangerous that adults of average mental capacity instinctively refrain from it. But where the passenger having rested his arm on the sill of the window within the car, it was jostled out and injured by a collision with a freight car which had been negligently left on a siding in such a position that the car carrying the passenger must strike it, the railway was properly held liable. 4 So the railway was held lia- ble where the passenger's arm similarly placed within a street car was jolted out by a collision of that car with another car upon a different track, on a curve which was so sharp that the cars necessarily struck in pass- ing ; 5 - so the railway was held liable where a passenger in a street car while in the act of taking his seat, hav- ing rested his hand on the base of an open window, it was struck by a projecting sewer plank. 6 274. It is contributory negligence in a passenger to 1 17 Wise. 487. * 39 Mo. 468. » 34 La. An. 139. * Farlow v. Kelly, 108 IT. S. 288. 6 G. P. Ry. v. Brophy, 105 Penna. St. 38, 16 Am. & Eng. R. R. Cas. 361. • r>ahlberg v. M. St. Ry., 32 Minn. 404, 18 Am. & Eng. R. R. Cas. 202. See also Dickinson v. P., H. & N. W. R. R., 18 N, W. Rep. (Mich.) 553. 286 passenger's negligence. ride in a baggage, or other car, not intended for the carriage of passengers, save with the consent of the railway, 1 provided, of course, that the position of the passenger was a contributing cause of his injury, and was, in itself, so dangerous a place that a man of ordi- nary prudence would not have voluntarily occupied it under ordinary circumstances. Baggage cars and lug- gage vans are not primarily intended for the carriage of passengers. It is, in case of accident to the train, dangerous to be in them, not only because they are in general coupled to the engine drawing the train, and preceding the passenger cars, but also because, in case of derailment or collision, the boxes and trunks in the baggage car are violently thrown about. It is, therefore, not reasonable to hold the railway liable to one whose injuries have been caused by his imprudence in volun- tarily riding in such a car. It is, of course, not con- tributory negligence in a passenger to ride in a pas- senger car other than that in which he has been assigned to a seat. 2 275. If the passenger assumes a position of danger at the invitation of a servant of the railway, or under an express or implied representation by a servant of the railway that he may safely occupy the position, the railway will, in general, be held liable for the injuries resulting therefrom ; 3 thus, in B. & O. R. R. v. State, to 1 H. & T. C. R. R. v. Clemmons, 55 Tex. 88, 8 Am. & Eng. R. R. Cas. 396 ; K. C. R. R. v. Thomas, 79 Ky. 160, 1 Am. & Eng. R. R. Cas. 79 ; P. R. R. v. Langdon, 92 Penna. St. 21, 1 Am. & Eng. R. R. Cas. 87 ; P. & R. I. R. R. ». Lane, 83 111. 448; Higgins v. H. & St. J. R. R., 36 Mo. 418 ; c/. Watson v. N. Ry., 24 Up. Can. (Q. B.) 98 ; Jacobus v. St. P. & C. Ry., 20 Minn. 125. * Penna. Co. v. Roy, 102 U. S. 451. 5 O'Donnell v. A. V. R. R., 59 Penna. St. 239; Dunn v. G. T. R. R., 58 Me. 187 ; Edgerton v. N. Y. C. R. R., 39 X. Y. 227 ; N. & C. R. R. v. Erwin, Tenn. , 3 Am. & Eng. R. R. Cas. 465 ; I. & St. L. R. R. v. Horst, 93 U. S. 291 ; L. & N. R. R. v. Kelley, 92 Ind. 371, 13 Am. & Eng. R. R. Cas. 1 ; Pool v. C. R. R., 56 Wise. 227 ; St. L., I. M. & S. R. R. v. Cantrell, 37 Ark. 519, 8 Am. & Eng. R. R. Cas. 198 ; G. R. R. & B. Co. v. McCurdy, 45 Ga. 288 ; passenger's negligence. 287 use of Mahone, 1 and in Warren v. F. R. R., 2 the rail- way was held liable to passengers who, upon the invi- tation of and in company with a station master, while crossing the line to enter a car, were struck by an en- gine moving upon an intervening track. So in P. R. R. v. McCloskey, 3 the railway was held liable to a pas- senger who was injured by reason of his obedience to specific instructions of the railway's servants, requiring him to place himself in a particular car, although those specific instructions were at variance with the railway's general regulations. So in C, C, C. & I. R. R. v. Man- son, 4 L. & N. R. R. v. Kelly, 5 and in Mclntyre v. N. Y. C. R. R., 6 railways were held liable to passengers who were injured while passing from one car to another of a train in motion, under the direction of the con- ductor. So in N. & C. R. R. v. Erwin, 7 the railway was held liable to one, who, having arrived at a station too late for his train, got upon an engine at the invita- tion of the station master, and while journeying on the line in the engine for the purpose of overtaking his train, was injured by the negligence of servants of the railway. So in St. L., I. M. & S. R. R. v. Cantrell, 8 the railway was held liable to a passenger who, at the suggestion of the conductor, jumped from the platform of a slowly moving train and was injured. 9 So in Lambeth v. N. C. R. R., 66 N. C. 494 ; Filer v. N. Y. C. & H. R. R. R., 59 N. Y. 351 ; Creed v. P. R. R., 86 Penna. St. 139 ; Colegrove v. N. Y. & H. & N. Y. & N. H. Ry., 20 N. Y. 492 ; C, C, C & I. R. R. v. Manson, 30 Ohio St. 451 ; Water- bury v. N. Y. C & H. R. R. R, 17 Fed. Rep. 671 ; C, B. & Q. R. R. v. Sykes, 96 111. 162, 2 Am. & Eng. R. R. Cas. 254. 1 63 Md. 135, 21 Am. & Eng. R. R. Cas. 202. J 8 Allen 227. * 23 Penna. St. 526. * 30 Ohio St. 451. 6 92 Ind. 371, 13 Am. & Eng. R. R. Cas. 1. • 37 N. Y. 287. 7 Tenn. , 3 Am. & Eng. R. R. Cas. 465. 8 37 Ark. 519, 8 Am. & Eng. R. R. Cas. 198. 9 See also Filer v. N. Y. C. R. R., 59 N. Y. 351 ; G. R. R. v. McCurdv, 45 Ga. 288 ; Bucher v. N. Y. C. & H. R. R. R., 98 N. Y. 128, 21 Am. & Eng. R. R. Cas. 361. 2S8 servant's invitation. Allender v. C, R. I. & P. Ry., 1 the railway was held liable to a passenger who was injured while under the direction of the railway conductor, entering a car at rest, but not in position at the usual platform. So in O'Donnell v. A. V. R. R., 2 the railway was held liable to a passenger who was injured while riding in a bag- gage car in violation of a rule of the railway, but with the assent of the conductor of the train. So in C. B. & Q. R. R. v. Sykes, 3 an intending passenger was held not to be necessarily contributory negligent in passing, on the invitation of a conductor, under a freight car which barred his way to the station. 276. The fact that a servant of the railway invited, or even directed the passenger to occupy a position of danger will not render the railway liable for injuries resulting therefrom, if the danger was so obvious, that a reasonable man would not have obeyed the servant, or accepted his invitation; 4 nor will the railway be liable to a passenger who is injured in alighting at a danger- ous place, because the conductor tells him that pas- sengers sometimes alight there, but does not either invite or command the particular passenger to alight at that point. 5 Nor will the railway be held responsible if the servant was not expressly, or impliedly, authorized to give the invitation. 6 In particular is this the case when the general regulations of the railway for the protection of the passenger forbid him to occupy a position of danger, as, for instance, to ride in the baggage car. On 1 43 Iowa 276. * 59 Penna. St. 239. 8 96 111. 162, 2 Am. & Eng. R. R. Cas. 254. * Hazzard v. C. B. & Q. R. R-, 1 Biss. 503 ; C. & A. R. R. v. Randolph, 53 HI. 510 ; B. & P. R. R. v. Jones, 95 U. S. 439 ; S. W. R. R. v. Singleton, 67 Ga. 306, 66 Id. 252 ; S. & N. A. R. R. v. Schaufler, 75 Ala. 136, 21 Am. & Eng R. R. Cas. 405. 6 C, B. & Q. R. R. v. Hazzard, 26 111. 373. 8 L. R. & F. S. Ry. v. Miles, 40 Ark. 298 ; Huff v. A. V. R. R., 91 Penna St. 458 ; Flower v. P. R. R., 69 Id. 210 ; P. R. R. v. Landgon, 92 Id. 21. LICENSE TO DISOBEY EULES. 289 this point Paxson, J., says with great force in P. H. R. v. Langdon, 1 "the rules adopted by railroad companies are a part of their police arrangements. Some of them are for the convenience of the company in the manage- ment of its business. Others are for the comfort of passengers, and yet others have exclusive regard to the safety of passengers. The distinction between them, and the difference in the consequences of their violation is manifest. As an illustration: it would be unreason- able to hold that the violation of the rule against smok- ing could be set up as a defence to an action for personal injuries resulting from the negligence of the company. On the other hand, should a passenger insist upon riding upon the cow-catcher, in the face of a rule prohibiting it, and as a consequence should be injured, I apprehend it would be a good defence to an action againct the company, even though the negligence of the latter's ser- vants was the cause of the collision or other accident, by which the injury was occasioned. And if the pas- senger thus recklessly exposing his life to possible acci- dents were a sane man, more especially if he were a railroad man, it is difficult to see how the knowledge or even the assent of the conductor to his occupying such a position could affect the case. There can be no license to commit suicide. It is true the conductor has the con- trol of the train and may assign passengers their seats, but he may not assign a passenger to a seat on the cow- catcher, a position on the platform, or in the baggage car. This is known to every intelligent man, and appears upon the face of the rule itself. He is expressly re- quired to enforce it, and to prohibit any of the acts re- ferred to, unless it be riding upon the cow-catcher, which is so manifestly dangerous and improper that it has not been deemed necessary to prohibit it. We are unable 1 02 Penna. St. 21, 28. 19 290 passenger's negligence on street cars. to see how a conductor, in violation of a known rule of the company, can license a man to occupy a place of danger so as to make the company responsible. It is otherwise as to rules which are intended merely for the convenience of the company or its passengers. It was said by Woodward, J., in Sullivan v. The Railroad Company, 1 'that on the part of the passenger his assent is implied to all the company's reasonable rules and regulations for entering, occupying, and leaving their cars, and if injury befall him by reason of his disregard of regulations, which are necessary to the conduct of the business of the company, the company are not liable in damages, even though the negligence of their servants concurred with his own negligence in causing the mis- chief.' This principle is even broader than the one we are now contending for. We only assert here, that if a passenger wilfully violates a known rule intended for his safety, and is injured in consequence of such viola- tion, he is not entitled to recover damages for such injury." 277. The conditions of travel on a street car are, of course, different from those on lines of railway whose cars are propelled at the higher rate which the use of steam as a motor makes possible, and it is not necessarily contributory negligence to ride on the platform of a street car ; 2 nor to leave one's seat in a street car and to stand on the rear platform, on which there is an accu- mulation of ice and snow; 3 nor to stand on the front 1 30 Penna. St. 234. 2 Meesel v. L. & B. R. R., 8 Allen 234 ; Spooner v. B. C. R. R., 54 N. Y. 230 ; G. P. Ry. v. Walling, 97 Penna. St. 55; Maguire v. M. R. R., 115 Mass. 237 ; Sheridan v. B. & N. R. R., 36 N. Y. 39; Clark v. 8th Ave. R. R., Id. 135; Burns v. B. R. R., 50 Mo. 139 ; Nolan v. B. C. & N. R. R., 87 N. Y. 63, 3 Am. & Eng. R. R. Cas. 463 ; 13th & 15th Sts. P. Ry. v. Boudrou, 92 Penna. St. 480, 8 Weekly Notes of Cases (Penna.) 244. 8 Fleck v. U. Ry., 134 Mass. 480, 16 Am. & Eng. R. R. Cas. 372. DISABLED PASSENGERS. 291 step of a horse car j 1 nor to get on or off a moving street car; 2 but it has been held to be contributory negligence to attempt to get on the front platform of a moving street car whose step is obviously broken ; 3 or to sit on the railing of the platform of a street car; 4 or to sit on the step of a street car. 5 A street railway is, of course, not liable to a passenger who is injured while standing on the step of the front platform by being jolted off by an ordinary movement of the car. 6 A street railway in operating street cars is not bound to prevent passengers from getting on and off the front platform of a car by guards or fenders, but the absence of such means of protection may properly be considered by the jury in determining whether or not the railway failed in its duty to one who was injured while alighting from the front platform; 7 yet in W. P. P. Ry. v. Gallagher, 8 judgment for the plaintiff was reversed by the same court which had decided P. C. P. Ry. v. Hassard, be- cause the judge at the trial left it to the jury to find the railway negligent in failing to provide such guards or fenders. 278. Where the railway voluntarily accepts as a pas- senger one whose physical disability is apparent, or is made known to its servants, and renders special assist- ance necessary, the railway is negligent if such assist- 1 W. P. P. Ry. v. Gallagher, 16 Weekly Notes of Cases (Penna.) 413. 2 G C Ry. v. Mumford, 97 111. 560, 3 Am. & Eng. R. R. Cas. 312 ; McDon- ough v. M. R. R, 137 Mass. 210, 21 Am. & Eng. R. R. Cas. 354; Eppendorf v. B. C. R. R., 69 N. Y. 195. 8 Dietrich v. B. & H. S. Ry-, 58 Md. 347, 11 Am. & Eng. R. R. Cas. 115. * Ginna v. S. A. R. R., 67 N. Y. 596 ; Downey v. Hendrie, 46 Mich. 498, 8 Am. & Eng. R. R. Cas. 386. * Wills v. L. & B. Ry., 129 Mass. 351, 2 Am. & Eng. R. R. Cas. 27. « F. S. & G. St. F. R. R. v. Hayes, 97 N. Y. 259, 21 Am. & Eng. R. R. Caa. 358. 7 P. C. P. Ry. v. Hassard, 75 Penna. St. 367. 8 16 Weekly Notes of Cases (Penna.) 413. 292 PASSENGERS ON FREIGHT CARS. ance be not afforded. 1 It lias been held that where the physical condition of the person injured is at the time of the injury such that the injuries caused by negligence on the part of the railway are thereby aggravated, the railway is not liable for that aggravation ; 2 but the more correct view seems to be that taken in those cases which hold that a defendant is equally responsible for injuries inflicted by his negligence, and for an aggravation of those injuries by reason of the impaired physical con- dition of the person injured prior to and at the time of the injury. 3 279. It is the duty of the railway, whatever be the means of conveyance which it uses, to provide every- thing which is essential to the safety of the passenger and reasonably consistent with the transportation of the passenger by the particular means of conveyance so used ; thus one who has been accepted as a passenger to be carried in a freight train is entitled to the same character, though not to the same degree, of protection as if he were carried in a passenger train. 4 280. The stringent obligations which the law imposes upon common carriers of passengers are not applicable to individuals occasionally carrying passengers gratui- 1 T. W. & W. R. R. v. Baddely, 54 111. 19 ; C. C. I. R. R. r. Powell, 40 Ind. 37 ; Milliniann v. N. Y. C. & H. R. R. R., 66 N. Y. 642 ; Sheridan v. B. C. R. R., 36 N. Y. 39 ; N. O., J. & G. N. R. R. v. Statham, 42 Miss. 607. * P. P. C. Co. v. Barker, 4 Colo. 344. 3 Allison v. C. & N. W. Ry., 42 Iowa 274; Brown v. C. M. & St. P. Ry., 54 Wise. 342, 3 Am. & Eng. R. R. Cas. 444 ; Fitzpatrick v. G. W. Ry., 12 Up. Can. (Q. B.) 645 ; Stewart v. Ripon, 38 Wise. 584. 4 Murch v. C. R. R., 29 N. H. 9 ; C, B. & Q. R. R. v. Hazzard, 26 111. 373 ; I R. R. v. Beaver, 41 Md. 493 ; I. & St. L. R. R. v. Horst, 93 U. S. 291 ; C. & G. R. R. v. Fay, 16 111. 568; Edgerton v. N. Y. & H. R. R. R., 39 N. Y. 227 ; Dunn v. G. T.Ry., 58 Me. 187. As to the restricted statutory liability of railways in Mississippi to passen- gers on freight trains, see Code 1880, \ 1054 ; Perkins v. C, St. L. & N. O. R. R., 60 Miss. 726, 21 Am. & Eng. R. R. Cas. 242. SPECIAL CARRIERS. 203 tously; 1 nor to railway contractors, who, in the course of constructing a line, occasionally carry passengers for hire; 2 nor are statutory regulations for the running of trains which have been enacted for the protection of passengers applicable to construction trains run by con- tractors upon an uncompleted line. 3 1 Moffatt v. Bateman, L. R. 3 P. C. 115. ' Shoemaker v. Kingsbury, 12 Wall. 369. 3 Griggs v. Houston, 104 U. S. 553. 294 RAILWAY SERVANTS. CHAPTER VII. THE LIABILITY OF THE RAILWAY TO THE PERSONS INCLUDED IN THE FIFTH CATEGORY, THAT IS, THE SERVANTS OF THE RAILWAY. I. The general principle determining the liability of the railway to its servants. II. The duty of the railway in its original construction and subsequent maintenance in repair of its line, rolling stock, and appliances. III. The duty of the railway in its selection and retention of servants. IV. The duty of the railway in its operation of its line. V. The liability of railways to their servants for the negligence of other servants. VI. The servant's implied undertaking to take upon himself the risks of the service. VII. Minor servants. VIII. The servant's contributory negligence. IX. Statutes affecting the liability of railways to their servants. I. THE GENERAL PRINCIPLE DETERMINING THE LIA- BILITY OF THE RAILWAY TO ITS SERVANTS. The railway is liable to its servants only for negligence. 281. In the term "servants" there are included all of the railway's officers and employes of every grade who are engaged in the operation of its line. I use the name " servant " rather than " employe," not only be- cause it is of larger import, but also because the relation of " master and servant " has long been a recognized topic in the law, and the use of the term " servant " renders more easy the reference to the many adjudged cases which deal with that relation. The nature and extent of the liability of railways for injuries to their servants in the course of railway operations is determin- RAILWAY SERVANTS. 295 able upon the general principles which are applicable to the relation of servants to other masters acting in their individual capacities. Masters do not insure the safety of their servants ; and they are liable to them only for negligence, that is, for a non-performance of duty causing injury to the servants. The relation be- tween masters and their servants being purely voluntary and contractual, the nature and extent of the master's duty is necessarily dependent upon the terms, whether express or implied, of the contract of service. If there be an express contract of service defining the master's liability, its terms must govern, but in the absence of any such contract the implied obligation of the master is only that he shall not be negligent in his personal participation in the work, nor in the personal participa- tion in the work of any one whom he has put in his place to represent him, and, in the exercise of an uncon- trolled discretion, to conduct the business for him ; nor in the provision of the machinery and appliances to be operated by the servant, nor in failing to repair ma- chinery and appliances which, although originally sound, have become dangerously defective, and whose condition either is, or ought to be, known to him ; nor in the original selection, or subsequent retention in the service, of servants whose incompetency either is, or ought to be, known to him. This being the extent of the master's implied obligation to the servant, it follpws, not only that the servant must be held by reason of the voluntary character of his engagement in the service, to have as- sumed the risks of danger to himself necessarily incident to the character of the service for which he engaged, in- cluding the risks of the negligence of his fellow-servants, but also that the servant cannot hold the master liable for an injury to the happening of which his, the ser- vant's, negligence has contributed. The general prin- 296 GENERAL KULE OF LIABILITY. ciples tlms stated are fully supported by the authorities. The leading case is Priestley v. Fowler, 1 where, in an action by a servant against his master, a butcher, for injuries received by the breaking down of an overloaded van, after verdict for the plaintiff' judgment was arrested on the ground, as stated by Abinger, C. B., that " from the mere relation of master and servant no contract, and, therefore, no duty can be implied on the part of the master to cause the servant to be safely and securely carried, or to make the master liable for damage to the servant arising from any vice or imperfection unknown to the master in the carriage, or in the mode of loading and conducting it ;" and in elucidation of this general principle, the Lord Chief Baron said, the master " is, no doubt, bound to provide for the safety of his servant, in the course of his employment to the best of his judg- ment, information, and belief. The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself; and in most of the cases in which injury may be incurred, if not in all, he is just as likely to be acquainted with the proba- bility and extent of it as the master. * * * In fact, to allow this sort of action to prevail would be an en- couragement to the servant to omit that diligence and caution which he is in duty bound to exercise in behalf of his master to protect him against the misconduct, or negligence, of others who serve him, and which diligence and caution, while they protect the master are a much better security against any injury the servant may sus- tain by the negligence of others engaged under the same master than any recourse against his master for damages could afford." So in Wilson v. Merry, 2 where the 1 3 M. & W. 1. ' L. E. 1 Sc. & Div. 326. RAILWAY SERVANTS. 297 owners and operators of a mine were sought to be held liable for the death of a miner, Cairns, L. C., said : " the master is not, and cannot be, liable to his servant unless there be negligence on the part of the master in that which he, the master, has contracted, or undertaken, with his servant to do. The master has not contracted nor undertaken to execute in person the work connected with his business. The result of an obligation on the master personally to execute the work connected with his busi- ness, in place of being beneficial, might be disastrous to his servants, for the master might be incompetent, per- sonally, to perform the work. At all events, a servant may choose for himself between serving a master who does, and a master who does not, attend in person to his business. But what the master is, in my opinion, bound to his servant to do, in the event of his not personally superintending and directing the work, is to select proper and competent persons to do so, and to furnish them with adequate material and resources for the work. When he has done this he has, in my opinion, done all that he is bound to do." So in Ormond v. Holland, 1 where the defendants were builders and the plaintiff was a servant, who, while ascending a ladder at a build- ing in course of construction by the defendants, was injured by the breaking of one of the rounds of the ladder and a fall therefrom, there being no proof that the de- fective condition of the ladder had been in any way brought home to the knowledge of the defendants, Campbell, C. J., directed a verdict for the defendants, and a rule to enter the verdict for the plaintiff was dis- charged, Campbell, C. J., saying : " we all agree that the action is not maintainable. There was no evidence of personal negligence; the builders used due and rea- 1 El. Bl. & El. 102, 96 E. C. L. 298 GENERAL RULE OF LIABILITY. sonuble care to have competent servants ; and I think they used more than ordinary care, and took extraor- dinary precaution, that the plant should be sufficient. There being no evidence of personal negligence, either by interference in the work, or in hiring the servants, or in choosing the implements, I am inclined to take some blame to myself for encouraging this application to the court; for, according to both decided cases and to principle, it must fail." So in Warner v. E. Ry., 1 where it was sought to hold the railway liable for in- juries to a servant caused by the fall of a bridge which had been carefully constructed and frequently inspected, judgment for the plaintiff was reversed in error, Bacon, J., saying, inter alia : " the only ground which the law recognizes of liability on the part of the defendant is that which arises from personal negligence, or such want of care and prudence in the management of its affairs, or in the selection of its agents or appliances, the omis- sion of which occasioned the injury, and which, if they had been exercised, would have averted it." All of the cases which are cited in this chapter serve to illustrate the proposition as stated by Bacon, J., for, however widely they may differ in their finding of that which constitutes negligence under any particular state of facts, they agree in holding negligence on the part of the rail- way to be the test of its liability. 282. The liability of the railway to its servants being dependent upon its negligence, it is not liable for in- juries to them resulting from inevitable accidents, such as the fall of a bridge which had been skilfully con- structed and carefully inspected ; 2 nor the explosion of the boiler of an engine from causes which could not 1 39 N. Y. 4G8 J Warner v. E. Ry., 39 N. Y. 468. NON-LIABILITY FOR ACCIDENT. 299 have been detected nor guarded against ; * nor the breaking of a rail by frost ; 2 nor the throwing of a mail bag by a mail agent from a passing train upon a station platform, when the railway had no reason to ex- pect that the bag would be thrown upon the platform ; 3 nor the formation of a poisonous substance by the de- cay of the grease in an axle-box, and the communica- tion of that poison to a cut in the servant's hand, the railway having no reason to anticipate that any poison- ous substance would result from the decay of the grease ; 4 nor the sudden reversal of the engine and stoppage of a train of construction cars to avoid a collision with cattle on the line, thereby throwing off a laborer who was upon the last car of the train ; 5 nor the movement of a car upon a siding by the shifting of another car on to the siding, thereby killing a servant who was stand- ing behind it, when the other servants, who were doing the shifting, had no reason to suppose that any one would be injured by the movement of that car; 6 nor the fall of a brakeman from a moving train when the proof fails to show why he fell ; 7 nor the derailment of a train by a misplaced switch, the evidence not showing when, how, or by whom the switch was misplaced ; 8 nor a collision between a hand-car and a train, which was caused by the fact that the foreman's watch was slower than that of the conductor of the colliding train ; 9 1 I. C. Ey. v. Houck, 72 111. 285 ; T. W. & W. Ey. v. Moore, 77 Id. 217 ; I B. & W. Ey. v. Toy, 91 Id. 474. 2 Henry v. L. S. & M. S. Ey., 49 Mich. 495, 8 Am. & Eng. E. E. Cas. 110. 3 Muster v. C. M. & St. P. Ey., 61 Wise. 325, 18 Am. & Eng. E. E. Cas. 113. * Kitteringham v. S. C. & P. Ey., 62 Iowa 285, 18 Am. & Eng. E. E. Cas. 14. 5 M. P. Ey. v. Haley, 25 Kans. 35, 5 Am. & Eng. E. E. Cas. 594; cf. Jeffrey v K. & D. M. E. E., 56 Iowa 546, 5 Am. & Eng E. E. Cas. 568. a Hallihan v. II. &St. J. E. E., 71 Mo. 113, 2 Am. & Eng. E. E. Cas. 117. 7 Corcoran v. B. & A. R. E., 133 Mass. 507; P. & E. E. E. v. Schertle, 97 Penna. St. 450, 2 Am. & Eng. E. E. Cas. 158. 8 Tinney v. B. & A. E. E., 62 Barb. 218. 9 Weger v. P H. E., 55 Penna. St. 460. 300 DUTY OF CONSTRUCTION, ETC. nor the slipping of a servant from the step as Le was climbing on a moving engine to make a coupling. * 283. As the liability of the railway to its servants is dependent upon the fact of its negligence, it is bound to its servants to exercise in its construction and in its maintenance in repair of its line, rolling stock and ap- pliances of labor, in its operation of its line, in the conduct of its business, and in its selection of its ser- vants of every rank, that degree of care which will tend to secure its servants' safety to as great an extent as is compatible with the conduct of an essentially haz- ardous business by the use of human instrumentalities. II. THE DUTY OF THE RAILWAY TO ITS SERVANTS IN THE ORIGINAL CONSTRUCTION AND SUBSEQUENT MAINTE- NANCE IN REPAIR OF ITS LINE, ROLLING STOCK, MA- CHINERY AND APPLIANCES. The duty of the railway to its servants requires the exercise of care on its part in the original construction, inspection, and maintenance in repair of its line, rolling stock, and apj)liances. 284. Railways do not warrant to their servants the safe condition of their line, nor the security of their appliances and machinery, and they guarantee only that due care shall be used in constructing and in keeping in repair, and in operating the line, appliances and machinery. 2 Ruger, C. J., in Probst v. Delama- 1 Jackson v. K. C, L. & S. K. R. R., 31 Kans. 761, 15 Am. & Eng. R. R. Cas. 178. * Clark v. Holmes, 7 H. & N. 937 ; Williams v. Clough, 3 Id. 258 ; Murphy v. Crossan, 98 Penna. St. 495 ; Johnson v. Bruner, 61 Id. 58 ; Murray v. Phillips, 35 L. T. 477 ; Hough v. T. P. Ry., 100 U. S. 213 ; Ford v. F. R. R., 110 Mass. 241 ; Holmes v. Worthington, 2 F. & F. 533 ; L. & N. R. R. v. Orr, 84 Ind. 50, 8 Am. & Eng. R. R. Cas. 94 ; Fuller v. Jewett, 80 N. Y. 46 ; L. S. & M. S. Ry. v. McCormick, 74 Ind. 440 ; Umback v. L. S. & M. S. Iy., 83 Ind. 191, 8 Am. & Eng. R. R. Cas. 98 ; Gates?;. S. M. Ry , 28 Minn. IK, 2 Am. & Eng. R. R. Cas. 237 ; Cooper v. C. R. R., 44 Iowa 134 ; Wedgwood v. C. & N. DUTY OF CONSTRUCTION, ETC. 301 ter, 1 thus states the rule : " the duty of the master to fur- nish safe, suitable, and sound tools, machinery and appli- ances, for the use of the servant in the performance of the work of the master, and to keep them in repair, is not an absolute one, and is satisfied by the exercise of reasonable care and prudence on the part of the master in the manufacture, selection, and repair of such ap- pliances. * * * Yet, when the master has exercised all of the care and caution which a prudent man would take for the safety and protection of his own person, the law does not hold him liable for the consequences of a defect which could not be discovered by careful inspec- tion, or the application of appropriate tests to determine its existence." 285. Railways are not bound to their servants to pro- vide the best possible appliances, but they are bound only to supply such appliances as are in use by well managed railways, and which they have skilfully constructed and carefully maintained in repair. 2 Miller, J., thus puts it in Marsh v. Chickering, 3 "the rule is that the master does not owe to his servants the duty to furnish W. Ry., 44 Wise. 44 ; T. W. & W. Ry. v. Asbury, 84 111. 429 ; Kain v. Smith, 80 N. Y. 458 ; Howd v. M. C. R. R.. 50 Miss. 178 ; Batterson v. C. & G. T. Ry., 49 Mich. 184, 8 Am. & Eng. R. R. Cas. 123 ; Wonder v. B. & O. R. R., 32 Md. 411 ; C. & A. R. R. v. Shannon, 43 111. 338 ; M. R. & L. E. R. R. v. Bar- ber, 5 Ohio St. 541 ; Probst v. Delamater, 100 N. Y. 266. 1 100 N. Y. 266, 272. * Brown v. A. C. S. & M. Co., 3 H. & C. 511 ; M. C. & C. Co. v. McEnery, 91 Penna. St. 185 ; L. R. & F. S. R. R. v. Duffey, 35 Ark. 602 ; Wonder v. B. & O. R. R., 32 Md. 411 ; King v. B. & W. R. R., 9 Cush. 112 ; L. S. & M. S. Ry. v. McCormick, 74 Ind. 440 (qualifying St. L. & S. E. Ry. v. Valirius, 56 Id. 511) ; McGinnis v. C S. B. Co., 49 Mich. 466, 8 Am. & Eng. R. R. Cas. 135 ; Schall v. Cole, 107 Penna. St. 1 ; Cooper v. C. R. R., 44 Iowa 134; P. & C. R. R. v. Sentmayer, 92 Penna. St. 275 ; Cagney v. H. & St. J. R. R., 69 Mo. 416 ; T. W. & W. Ry. v. Fredericks, 71 111. 294 ; T. W. & W. Ry. v. Asbury, 84 Id. 429 ; Smith v. N. Y. & H. R. R., 19 N. Y. 127 ; Disher v. N. Y. C. & H. R. R. R., 94 N. Y. 622, 15 Am. & Eng. R. R. Cas. 233 ; Burke v. Witherbee, 98 N. Y. 562. » 101 N. Y. 396, 400. 302 DUTY OF CONSTRUCTION, ETC. the best known or conceivable appliances ; be is simply required to furnish such as are reasonably safe and suit- able; such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances." As the duty of a railway to its servants does not require it to provide the best possible appliances, nor to insure its servants against the ordinary dangers of the service, the railway is not liable to freight brakemen because the bridges over ita line are not sufficiently high to permit brakemen to stand safely on the roofs of cars moving under such bridges; 1 nor because its line is not ballasted, or is inter- sected with ditches ; 2 nor because its switch frogs are not blocked ; 3 nor because it has delayed for any length of time to repair a car which is not in use, and which has not been left in a position of danger; 4 nor because it has not an uniform coupling for all of its engines and cars; 5 nor because its car platforms are of 1 P. & C. R. R. v. Sentmayer, 92 Penna. St. 276, 5 Am. & Eng. R. R. Cas. 508 ; Owen v. N. Y. C. R. R., 1 Lans. 108 ; Devitt v. P. R. R., 50 Mo. 302 ; B. & O. R. R. v. Strieker, 51 Md. 47 ; Rains v. St. L., T. M. & S. Ry., 71 Mo. 164, 8 Am. & Eng. R. R. Cas. 610 ; Wells v. B. C. R. & N. R. R., 56 Iowa 520, 2 Am. & Eng. R. R. Cas. 243 ; Baylor v. D., L. & W. R. R., 40 N. J. L. 23 ; Gibson v. M. Ry., 2 Ont. (Can.) 653 ; Clark v. B. & D. R. R., 78 Va. 709, 18 Am. & Eng. R. R. Cas. 78 ; sed contra, B. & O. & C. R. R. v. Rowan, Ind. , 23 Am. & Eng. R. R. Cas. 390. 2 P. & R. R. R. v. Schertle, 97 Penna. St. 450, 2 Am. & Eng. R. R. Cas. 158 ; DeForrest v. Jewett, 88 N. Y. 264, 8 Am. & Eng. R. R. Cas. 495 ; Wil- liams v. C. R. R., 43 .Iowa 396 ; Gates v. S. M. Ry., 28 Minn. 110, 2 Am. & Eng. R. R. Cas. 237 ; Penna. Co. v. Hankey, 93 111. 580. 3 McGinnis v. C. S. B. Co., 49 Mich. 466, 8 Am. & Eng. R. R. Cas. 135 ; L. S. & M. S. Ry. v. McCormick, 74 Ind. 440 ; cf. Meyers v. C, R. I. & P. Ry., 57 Iowa 555, 8 Am. & Eng. R. R. Cas. 527. 1 Flanagan v. C. & N. W. Ry., 45 Wise. 98, 50 Id. 462, 2 Am. & Eng. R. R. Cas. 150. 6 M. C. R. R. v. Smithson, 45 Mich. 212, 1 Am. & Eng. R. R. Cas. 101 ; I., B. & W. R. R. v. Flanigan, 77 111. 365; Whitman v. W. & M. Ry., 58 Wiso 408, 12 Am. & Eng. R. R. Cas. 214; Kelly v. W. C. Ry., Wise. , 21 Am * Eng. R. R. Cas. 633. DUTY OF INSPECTION. 303 unequal height; 1 nor because the car couplings work slowl j .' , The duty of the railway to its servants requires frequent and thorough inspections of its line and appliances. 286. In order that the railway may be assured that its line, rolling stock, and appliances are in a reasonably safe condition, the duty devolves upon it of causing as frequent and thorough inspections of its line and appli- ances to be made as can be done consistently with the conduct of its business, and the railway which neglects to perform that duty of inspection is liable to a servant injured by reason of any defect in the line, rolling stock, or appliances which such an inspection ought to have detected. 3 Under circumstances of more than ordinary peril, as in the case of violent storms, it is the duty of the railway to inspect its line with more than ordinary promptitude and thoroughness, and in partic- ular to examine such portions of it as are peculiarly liable to injury by storms, such as embankments. 4 It is also the duty of the railway, in recognition of the necessary deterioration in its line, rolling stock, machinery and appliances, by wear and tear in use, and by decay, 1 Hulett v. St. L., K. C. & N. Ry., 67 Mo. 239 ; F. W., J. & S. Ry. v. Gilder- sleeve, 33 Mich. 133 ; I., B. & W. R. R. v. Flanigan, 77 111. 365 ; Hodgkins v. E. R. R., 119 Mass. 419 ;. Bottsford v. M. C. Ry., 33 Mich. 256 ; St. L., I. M. & S. R. R. v. Higgins, 44 Ark. 293, 21 Am. & Eng. R. R. Cas. 629 ; cf. Ellis v. N. Y., L. E. & W. R. R., 95 N. Y. 546 ; Cowles v. R. & D. R. R., 84 N. C. 309. 2 Am. & Eng. R. R. Cas. 90. 1 Williams v. C. R. R., 43 Iowa 396. 8 Brami v. C, R. I. & P. Ry., 53 Iowa 595 ; Smoot v. M. & M. Ry., 67 Ala. 13; A. T. & S. F. R. R. v. Holt. 29 Kans. 149, 11 Am. & Eng. R. R. Cas. 206; Locke v. S. C. & P. R , 46 Iowa 109; T. W. & W. Ry. v. Conroy, 68 111. 560; Davis v. C. V. R. R, 55 Vt. 84, 8 Am. & Eng. R. R. Cas. 173 ; Dale v. St. L., K. C. & N. R. R., 63 Mo. 455 ; H. & T. C. Ry. V. Dunham, 49 Tex. 181 ; Indiana Car Co. v. Parker, 100 Ind. 191. * Hardy v. N. C C. R. R., 74 N. C. 734 ; Gates v. S. M. Ry., 28 Minn. 110, 2 Am. & Eng. R. R. Cas. 237. 8U4 DUTY OF INSPECTION. to exercise care in inspection for the purpose of discover- ing not only accidental defects but also the effects of deterioration and the progress of decay ; x thus, where a railway had recently come into possession of a line constructed by another company, it was held not to be liable for injuries resulting from the defective condition of that line, it not being shown that the railway had been negligent either in not inspecting, or in not repair- ing it, 2 but where a railway had come into possession, as lessee, of another line, and had operated it without in- spection, it was held liable to a servant who had been injured by the fall of a bridge, whose defects could have been discovered if the bridge had been examined by a competent engineer. 3 287. If the railway has not been negligent in the original construction, nor in the subsequent inspection of its line, rolling stock, machinery, and appliances, and a servant is, nevertheless, injured by reason of a defect therein, it must be shown, in order to hold the railway liable for the injury, that the officer, whose duty it was to repair it, had been notified of the particular defect which was the cause of the injury. 4 A master is liable if the machinery or appliances are defective, in that they do not comply with statutory requisites, and if injury to a servant is caused thereby. 5 A master is liable for his personal negligence in the construction of machinery, and the negligence of the president of a corporation, under such circumstances, is the neglect 1 Baker v. A. V. E. K., 95 Penna. St. 211, 8 Am. & Eng. K. E. Cas. 141 ; Warden v. O. C. E. E., 137 Mass. 204, 21 Am. & Eng. E. E. Cas. 612. 1 Patterson v. C. & G. T. Ey., 49 Mich. 184, 8 Am. & Eng. E. E. Cas. 123. 1 Vosburg v. L. S. & M. S. Ey., 94 N. Y. 374. Patterson v. P. & C. E. E., 76 Penna. St. 389 ; Porter v. H. & St. J. E E., 71 Mo. 66, 2 Am. & Eng. E. E. Cas. 44 ; C. & A. E. E. v. Piatt, 89 111. 141 ; T. W. & W. Ey. v. Ingraham, 77 Id. 309 ; C. & N. W. Ey. v. Jackson, 55 Id. 492. 6 Britton v. G. W. Cotton Co- L. E. 7 Ex. 130. DUTY AS TO LINE, ETC. 305 of the corporation. 1 Eailways are liable if a person of known incompetency has been employed to construct rolling stock, machinery, or appliances, 2 and, although a competent contractor has been employed for that purpose, the railway is liable for his negligence in construction. 288. The railway must, therefore, exercise care in its construction, inspection, and 'maintenance in repair of its line, roadbed, and track, 3 its embankments, 4 its bridges and trestles, 5 its culverts, 6 its turn-tables, 7 its 1 Ardesco Oil Co. v. Gilson, 63 Penna. St. 146 ; S. E. E. v. Jones, 30 Kans. 601, 15 Am. & Eng. E. E. Cas. 201. 2 Potts v. P., C. & D. Ey., 8 W. E. 524. 3 Porter v. H. & St. J. E. E., 71 Mo. 66, 2 Am. & Eng. E. E. Cas. 44 ; Haw- ley v. N. C. Ey., 82 N. Y. 370, 2 Am. & Eng. E. E. Cas. 24S ; Snow v. H. E. E., 8 Allen 441 ; O'Donnell v. A. V. E. E., 59 Penna. St. 239 ; I. & C. E. E. i>. Love, 10 Ind. 554 ; Fifield v. N. E. E., 42 N. H. 225 ; H. & G. N. E. E. v. Eandall, 50 Tex. 254 ; Durkin v. Sharp, 88 N. Y. 225, 8 Am. & Eng. E. E. Cas. 520 ; Trask v. C. S. E. E., 63 Cal. 96, 11 Am. & Eng. E. E. Cas. 192 ; Knapp •. S. C. & P. Ey., 65 Iowa 91, 18 Am. & Eng. E. E. Cas. 60; De Forrest v. Jewett, 88 N. Y. 264, 8 Am. & Eng. E. E. Cas. 495 ; Brickman v. S. C. E. E., 8 S. C. 173 ; Lewis v. St. L. & I. M. Ey., 59 Mo. 495 ; Drymala v. Thompson, 26 Minn. 40 ; Baird v. C, E. I. & P. Ey., 55 Iowa 121, 13 N. W. Eep. 731, 8 Am. & Eng. E. E. Cas. 128 ; 61 Iowa 359, 12 Am. & Eng. E. E. Cas. 75 ; H. & T. C, Ey. v. Pinto, 60 Tex. 516, 15 Am. & Eng. E. E. Cas. 286 ; Batterson v, C. & G-. T. Ey., 49 Mich. 184, 8 Am. & Eng. E. E. Cas. 123; Pool v. O, M. & St. P. Ey., 56 Wise. 227, 8 Am. & Eng. E. E. Cas. 360 ; P. & E. E. E. v. Schertle, 97 Penna. St. 450, 2 Am. & Eng. E. E. Cas. 158. * C. E. E. v. Mitchell, 63 Ga. 177, 1 Am. & Eng. E. E. Cas, 145 ; Gates v. S. M. Ey., 28 Minn. 110, 2 Am. & Eng. E. E. Cas. 237. 5 McDermott v. P. E. E., 30 Mo. 115; Warner v. E. Ey., 39 N. Y. 468 ; Faulkner v. E. Ey., 49 Barb. 324 ; O. B. Coal Co. v. Eeed, 5 Weekly Notes of Cases (Penna.) 3 ; Paulmier v. E. E. E., 5 Vroom 151 ; Locke v. S. C. & P. Ey . 46 Iowa 109 ; T., P. & W. Ey. v. Conroy, 61 111. 162 ; T. W. & W. Ey. v. Con roy, 68 111. 560; Mann v. S. C. & P. Ey., 46 Iowa 637 ; McCune v. N. P. Ey. 18 Fed. Eep. 875, 15 Am. & Eng. E. E. Cas. 172 ; Koontz v. C, E. I. & P Ey., 65 Iowa 224, 18 Am. & Eng. E. E. Cas. 85 ; Elmer v. Locke, 135 Mass 575, 15 Am. & Eng. E. E. Cas. 300 ; cf. W. Ey. v. Elliott, 98 111. 481, 4 Am & Eng. E. E. Cas. 651. • Davis v. C. V. E. E., 53 Vt. 84, 11 Am. & Eng. E. E. Cas. 173. 7 L. S. & M. S. Ev. v. Fitzpatrick, 31 Ohio St. 479 ; Durgin v. Munson, 9 Allen 396 ; E. T. V. «& G. E. E. v. Toppins, 10 Lea (Tenn.) 58, 11 Am. & Eng. R R. Cas. 222. 20 30G DUTY AS TO ROLLING STOCK. sidings, 1 its switches, 2 its round-houses, 3 its engines, in- cluding boilers, 4 cow-catcher/' pilot and whistle, 6 air- brake, 7 valves, 8 oil-cup, 9 draw-bar, 10 and chafing-irons; 11 its derricks, poles, and tackle; 12 its bridge-guards; 13 its 1 Patterson v. P. & C. R. R., 76 Penna. St. 393. 1 Smith v. St. L., K. C. & N. Ry., 69 Mo. 32 ; Ladd v. N. B. R. R., 119 Mass. 412 ; Walker v. B. & M. R. R., 128 Id. 8 ; Piper v. N. Y. C. & H. R. R. R, 56 N. Y. 630; Penna. Co. v. Roney, 89 Ind. 453, 12 Am. & Eng. R. R. Cas. 223 ; Mattery v. T. & W. R. R., 23 Ind- 81 ; Randall v. B. & O. R. R., 109 U. S. 478, 15 Am. & Eng. R. R. Cas. 243 ; L. S. & M. S. Ry. v. McCormick, 74 Ind. 440, f> Am. & Eng. R. R. Cas. 474 (qualifying the rule laid down in St. L. & S. E. Ry. v. Valirius, 56 Ind. 511) ; McGinnis v. C. S. B. Co., 49 Mich. 466, 8 Am. & Eng. R. R. Cas. 135 ; Mayes v. C, R. I. & P. Ry., 63 Iowa 562, 8 Am. & Eng. R. R. Cas. 527. s Manning v. B. C. R. & N. R. R-, 64 Iowa 240, 15 Am. & Eng. R. R. Cas. 171 . * Ford v. F. R. R., 110 Mass. 241 ; Fuller v. Jewett, 80 N. Y. 46 ; Hough v. [\ & P. Ry., 100 U. S. 213 ; P. & N. Y., N. & R. R. Co. v. Leslie, 16 Weekly Notes of Cases (Penna.) 321 ; N. & D. R. R. v. Jones, 9 Heisk (Tenn.) 27 ; C. & P. R, R. v. The State, 44 Md. 283 ; Kirkpatrick v. N. Y. C. & H. R. R. R., 79 N Y. 240; I., B. & W. Ry. v. Toy, 91 111. 474; T. W. & W. Ry. v. Moore, 77 Id 217 ; I. C. R. R. v. Houck, 72 Id. 285 ; M. & O. R. R. v. Thomas, 42 Ala. 672 ; Keegan v. W. R. R., 8 N. Y. 175 ; C. & I. C. C. R. R. v. Arnold, 31 Ind. 174 ; Hubgh v. N. C. & C. R. T., 6 La. An. 495 ; S. C. & P. Ry. v. Fin- layson, 16 Neb. 272, 18 Am. & Eng. R. R. Cas. 68 ; Murphy v. B. & A. R. R., 88 N. Y. 146, 8 Am. & Eng. R. R. Cas. 510 ; St. L., I. M. & S. Ry. v. Harper, 44 Ark. 524. 5 1. R. R. v. Estes, 96 111. 470. 6 Hough v. T. & P. Ry-, 100 U. S. 213. I K. C, St. J. & C. B. Ry. v. Flynn, 78 Mo. 195, 18 Am. & Eng. R. R. Cas. 23. 8 Cone v. D., L. & W. R. R., 81 N. Y. 207 ; C. & R. I. R. R. v. Rung, 104 111. 641, 11 Am. & Eng. R. R. Cas. 218. 9 E. T. V. & G. Ry. v. Stewart, 13 Lea (Tenn.) 432, 21 Am. & Eng. R. R. Cas. 614. 10 Whitman v. W.& M. R. Ry., 58 Wise. 408, 12 Am. & Eng. R. R. Cas. 214. II Greene v. M. & St. L. Ry., 31 Minn. 248, 15 Am. & Eng. R. R. Cas. 214. " Holden v. F. R. R., 129 Mass. 268, 2 Am. & Eng. R. R. Cas. 94 ; Baker v. A. V. R. R , 95 Penna. St. 211, 8 Am. & Eng. R. R. Cas. 141 ; King v. N. Y. C. & H. R. R. R , 72 N. Y. 607 ; Derrenbacher v. L. V. R. R-, 87 Id. 636, 4 Am. & Eng. R. R. Cas. 624 ; G., H. & S. A. R. R. v. Delahunty, 53 Tex. 206, 4 Am. & Eng. R. R. Cas. 628 ; K. P. Ry. v. Little, 19 Kans. 267 ; McGowan v. St. L. & I. M. R. R., 61 Mo. 528; P. P. Car Co. v. Bluhm, 109 111. 20, 18 Am. & Eng. R. R. Cas. 87 ; L. & N. R. R. v. Orr, 84 Ind. 50, 8 Am. & Eng. R. R. Cas. 94; Houser v. C, R. I. & P. Ry., 60 Iowa 230, 8 Am. & Eng. R. R. Cas. 501. » Warden v. O. C. R. R., 137 Mass. 204, 21 Am. & Eng. R. R. Cas. 612. DUTY AS TO APPLIANCES. 307 hand cars; 1 its passenger and freight cars, 2 including freight car ladders, 3 couplings, 4 brakes and brake chains, 5 and check chains, 6 and its tools. 7 289. The railway's duty of care as to the construction of its line renders it liable to its servants for injuries caused by the location in dangerous proximity to its line of any structure over which it may rightfully ex- 1 N. Y., L. E. & W. K. E. v. Powers, 98 N. Y. 274, 21 Am. & Eng. K. K. Cas. 609 ; C. R. R. v. Kenney, .58 Ga. 485 ; Kenney v. C. R. R., 61 Id. 590 ; C. R. R. v. Kenney, 64 Id. 100, 8 Am. & Eng. R. R. Cas. 155 ; E. T. V. & Gr. R. R. v. Smith, 9 Lea (Tenn.) 685; I. & G. N. R. R. v. Doyle, 49 Tex. 190; Bar- ringer v. D. & H. C. Co., 19 Hun. 216 ; Miller v. U. P. Ry., 17 Fed. Rep. 67 ; S. R. R. v. Jones, 30 Kans. 601, 15 Am. & Eng. R. R. Cas. 201 ; T. & P. Ry. v. Kane, Tex. , 15 Am. & Eng. R. R. Cas. 218 ; McQueen v. C. B. U. P. Ry., 30 Kans. 689, 15 Am. & Eng. R. R. Cas. 226 ; Pool v. C, M. & St. P. Ry., 56 Wise. 227, 8 Am. & Eng. R. R. Cas. 360 ; U. T. Co. v. Thomason, 25 Kans. 1, 8 Am. & Eng. R. R. Cas. 589. 2 C, B. & Q. R. R. v. Warner, 108 111. 538, 18 Am. & Eng. R. R. Cas. 100 ; M. R. & L. E. R. R. v. Barber, 5 Ohio St. 541 ; Flannigan v. C. & N. W. Ry., 45 Wise. 98, 50 Id. 462, 2 Am. & Eng. R. R. Cas. 150. 3 C. & A. R. R. v. Piatt, 89 111. 141 ; T., W. & W. Ry. v. Ingraham, 77 Id 309 ; Ballou ». C. & IS 1 . W. Ry., 54 Wise. 257, 5 Am. & Eng. R. R. Cas. 480; R. & D. R. R. v. Moore, 78 Va. 93, 15 Am. & Eng. R. R. Cas. 239. * Lawless v. C. R. R. R., 136 Mass. 1, 18 Am. & Eng. R. R. Cas. 96 ; T. & W. R. R. v. Frederick, 71 111. 294 ; Ellis v. N. Y., L. E. & W. R. R., 95 N. Y. 546 ; A.,' T. & S. F. R. R. v. Ledbetter, 34 Kans. 326, 21 Am. & Eng. R. R. Cas. 555 ; H. & T. C. R. R. v. Maddox, Tex. , 21 Am. & Eng. R. R. Cas. 625 ; A., T. & S. F. R. R. v. Wagner, 33 Kans. 660, 21 Am. & Eng. R. R. Cas. 637. 5 Wedgwood v. C. & N. W. R. R., 44 Wise. 44, 41 Id. 478 ; Painton ». N. C. Ry., 83 N. Y. 7, 5 Am. & Eng. R. R. Cas. 454 ; P. & R. R. R. v. Agnew, 11 Weekly Notes of Cases (Penna.) 394; Herbert v. N. P. Ry., Dak. , 8 Am. & Eng. R. R. Cas. 85 ; Jobnson v. R. & D. R. R. 81 N. C. 453 ; De Graff v. N. Y. C. & H. R. R. R., 76 N. Y. 125 ; Leahy v. S. P. Ry., Cal. ,15 Am. & Eng. R. R. Cas. 230 ; Disher v. N. Y. C. & H. R. R. R., 94 N. Y. 622 ; 15 Am. & Eng. R. R. Cas. 233 ; Henry v. S. I. Ry., 81 N. Y. 373, 2 Am. & Eng. R. R. Cas. 60 ; Ransier v. M. & St. L. Ry., 32 Minn. 331, 21 Am. & Eng. R. R. Cas. 601. 6 Ladd v. N. V. R. R., 119 Mass. 412. T P., W. & B. R. R. v. Keenan, 103 Penna. St. 124; Guthrie v. L. & N. R R., 11 Lea (Tenn.) 372, 15 Am. & Eng. R. R. Cas. 209 ; Baker v. W. & A. R. R., 68 Ga. 699 ; C, C. & I. C. Ry v. Troesch, 68 111. 545 ; Hanrathy v. N. C. Ry., 46 Md. 280. 308 DANGEROUSLY LOCATED OBSTRUCTIONS. ercise exclusive control, sucli as cattle chutes, 1 coal chutes, 2 bridge supports, 3 bridge trusses, 4 signal posts and telegraph poles, 5 water tanks, 6 a station-master's clothes-line post, 7 mail catchers, 8 piles of lumber, 9 and station awnings. 10 But the duty of the railway to its servants does not require it to construct and maintain the bridges, by which highways or other railways are carried over its line, at such a height that its servants can stand erect or move on the tops of its cars without possibility of the collision of their persons with such bridges. The reason of the distinction is that such bridges are not under the exclusive control of the rail- way whose line passes under them, and the servants of that railway, in entering upon the performance of duties which require them to stand or move upon the tops of its cars while in transit on the line, know that one of the dangers incident to their employment is that of coming in contact with such bridges, and they, there- fore, by entering into the service, impliedly undertake to bear that risk, but they do not impliedly undertake to bear the risk of injury from dangerous constructions 1 Allen 'v. B., C, E. & N. Ey., 57 Iowa 623, 5 Am. & Eng. E. E. Cas. 620, Dorsey v. P. & C. C. Co., 42 Wise. 583. 2 A., T. & S. F. E. E. v. Eetford, 18 Kans. 245. J Graham v. N. E. Ey., 18 C. B. N. S. 229, 114 E. C. L. 4 W. Ey. v. Elliott, 98 111. 481, 4 Am. & Eng. E. E. Cas. 651. 5 C. & I. E. E. v. Eussell, 91 111. 298; Hall v U. P. Ey., 16 Fed. Eep. 744; A. & C. A. L. E. E. v. Woodruff, 63 Ga. 707 ; H. & T. Ey. v. Oram, 49 Tex. 341 ; Walsh v. O. Ey. & N. Co., 10 Oregon 250 ; sed cf. Lovejoy v. B. & L. E. E., 125 Mass. 79. 6 A. & W. P. E. E. v. Webb, 61 Ga. 586 ; A. & C. A. E. E. v. Woodruff, 65 Id. 707 ; H. & T. Ey. v. Oram, 49 Tex. 341 ; Walsh v. O. Ey. & N. Co., 10 Oregon 250 ; cf. Gould v. C. B. & Q. E. E., 66 Iowa 590, 22 Am. & Eng. E. E. Cas. 289. 7 Kearns v. O, M. & St. P. Ey., 66 Iowa 599, 22 Am. & Eng. E. E. Cas. 287. 8 C, B. & Q. E. E. v. Gregory, 58 111. 272. 9 Bessex v. C. & N. W. Ey., 45 Wise. 477. 10 1. C. E. E. v.Welch, 52 111. 183. CARS FROM OTHER LINES. ?>U ( J which are under the exclusive control of the railway which employs them. The railway may assume that cars received from another line for trans- portation over its line are properly constructed, and it is only bound to make such an inspection of them as the exigencies of traffic permit. 290. The through transportation of passengers and goods over connecting lines without changing cars or breaking bulk frequently requires railways to receive and haul cars from other lines. The railway as a com- mon carrier is bound to receive and haul such cars, but its duty to its servants requires it to subject all such cars to as thorough an inspection as the exigencies of traffic permit, and if that inspection be not made, or if upon such an inspection any such car be found to be faulty in construction or dangerously out of repair, the railway ought to decline to haul it, and if it does under- take to haul it, the railway ought to be liable for any injury to a servant caused thereby. The railway ought not, however, to be held liable for hidden defects which could not be detected by such an inspection as the exi- gencies of traffic permit, nor ought it to be held liable for its inspector's negligent performance of his duty, save under those conditions which render a railway liable for the negligence of any servant causing injury to a fellow-servant. 1 1 Richardson ». G. E. Ry., L. R. 10 C P. 486, 1 C. P. D. 342; Fay v. M. & St. L. Ry., 30 Minn. 231, 11 Am. & Eng. R. R. ('as. 193; St. L. & S. E. Ry. v. Valirius, 56 Ind. 511 ; Ballou v. C, M. & St. P. Ry., 54 Wise. 257, 5 Am. & Eng. R. R. Gas. 4S0; M. C. R. R v. Smithson, 45 Mich. 212, 1 Am. & Eng. R. R. Gas. 101 ; Oottleib v. N.Y., L. E. & W. R. R., 29 Bun (N. Y.) 637, 100 N. Y. 462; Baldwin v. C, R. I. & P. Ry., 50 Iowa 680; Smith v. Potter, 46 Mich. 258, 2 Am. & Eng. R. R. Gas. 140 ; Mackin v. B. & A. R. R., 135 Mass. 201, 15 Am.& Eng. R. R. ('as. 196; L. M. R. R. v. Fitzpatrick, 42 Ohio St. 818; T. & P. Ry. v. Charlton, 60 Tex. 397, 15 Am. A Eng. R. R. Cas. 350; Kelly v. W. G. Ry., Wise. , 21 Am. & Eng. R. R. Gas. 633; O'Neil v. 310 CARS FROM OTHER LINES. 291. There is not a thorough agreement am mg the authorities on this subject. Thus, in L. M. R. R. v. Fitzpatrick, 1 where the railway was held not to be liable to a servant for injuries resulting from the negligence of its inspector of car repairs, in failing to detect in a car received from another line, a hole which had been burned in the runway on the top of a freight car, and also in failing to discover that its brake wheel was in- sufficiently fastened, the consequence of which negli- gence was, that the servant, in walking on the runway in the discharge of his duty, while the car was in mo- tion, saw the burned hole, and, in attempting to avoid it, slipped, and, catching hold of the brake wheel to save himself, it gave way, and he fell between the cars and was hurt, Mcllvaine, J., said: "undoubtedly the law requires a railroad company to exercise reasonable care in providing and maintaining safe machinery for the use of its employes engaged in running trains upon its road, but such employer as to such employe is not an insurer of the fitness of its machinery for the purpose for which it was intended. It is bound to vigilance, but vigilance is the maximum of its duty. The success- ful management of a railroad requires the co-operation of many servants. Reasonable care in the employment of careful and competent servants is required of the company, but the exercise of reasonable care by such servants is at the risk of Iris fellow-servants. The car alleged to be defective, in this case, as the testimony tends to show, was the car of another company on its way home ; but admitting the duty of the company was the same as if it had been its own car, this duty was to St. L., I. M. & S. R. R., 9 Fed. Rep. 337 ; Jetter v. N. Y. & H. R. R., 2 Abb. Ct. App. Dec. 458; Jones v. N.Y. C. & H. R. R. R., 28 Hun. 364, 92 N. Y. 628; Kieth v. N. II. & N. R. R., 140 Mass. 175, 23 Am. & Eng. R. R. Cas. 421. 1 42 Ohio St. 318, 17 Am. & Eng. R. R. Cas. 578. CARS FROM OTHEE LINES. 311 employ competent and careful inspectors and repairers. If that were done, its duty to other operatives of the road was performed." So, in Mackin v. B. & A. R. R., 1 upon similiar facts a like result was reached on the ground, as stated by Allen, C. J., that the railway, being bound as a common carrier, to receive from other lines cars for transportation over its lines, its duty to its servants with regard to cars so received, was not that "of furnishing proper instrumentalities for service, but of inspection, and this duty is performed by the employment of sufficient, competent, and suitable in- spectors, who are to act under ]3roper superintendence, rules, and instructions ; and, however it may be as to other cars, the inspectors must be deemed to be engaged in a common employment with the brakemen as to such cars while in transit, and until ready to be inspected for a new service." Most of the cases cited in the last note agree in their conclusion with the Fitzpatrick and the Mackin cases. In Gottleib v. N. Y., L. E. & W. R. R., 2 the railway was held liable to a freight brake- man, who was injured while coupling defective cars which had been received from another railway for trans- portation over the line, and Earl, J., said, " the defend- ant was under obligation to its employes to exercise reasonable care and diligence in furnishing them safe and suitable implements, cars and machinery for the discharge of their duties, and upon the assumption that the defendant was responsible for the condition of these cars, as if they were owned by it, there can be but little doubt that the evidence was ample to show that it had failed in its duty to the plaintiff. The defect was an obvious one, easily discoverable by the most ordinary inspection, and it would seem to be the grossest negli- 1 135 Mass. 201, 15 Am. & Eng. R. R. Can. 196. 1 100 N. Y. 462. 312 CARS FROM OTHER LINES. gence to put such cars into any train, and especially into a train consisting of cars of different gauge. * * * All the authorities hold that the company drawing the cars of another company over its road owes, in reference to such cars, some duty to its employes. It is not bound to take such cars if they are known to be defec- tive and unsafe. Even if it is not bound to make tests to discover secret defects, and is not responsible for such defects, it is bound to inspect foreign cars, just as it would inspect its own cars. It owes the duty of inspec- tion as master, and is, at least, responsible for the con- sequences of such defects as would be disclosed or dis- covered by ordinary inspection. When cars come to it, which have defects visible or discoverable by ordinary inspection, it must either remedy such defects, or refuse to take such cars ; so much, at least, is due from it to its employes. The employes can no more be said to as- sume the risks of such defects in foreign cars than in cars belonging to the company. As to such defects, the duty of the company is the same as to all cars drawn over its road. The rule imposing this responsibility is not an onerous, or inconvenient, or impracticable one. It requires, before a train starts, and while it is upon its passage, the same inspection and care as to all the cars in the train." The judgment in Gottleib's case was un- questionably right, upon the facts as found by the jury, and the law as laid down by Earl, J., in his judgment, is not in practical effect at variance with that enuncia- ted in the Fitzpatrick and Mackin cases ; for in those cases there was negligence in the performance of the inspector's duty; while in the Gottleib case, there was a total failure on the part of the railway to perform the duty of inspection. 292. As the railway owes to its servants the duty of exercising due care with regard to all the instrumentali- DUTY AS TO SELECTION OF SERVANTS. 313 ties of work which it supplies for their use, the fact that another railway has contracted with it to keep in repair the rolling stock which is delivered by that other com- pany for transportation over its line, will not relieve it from its obligation to its own servants to exercise due care as to the safe condition of such rolling stock, and, to that end, of inspecting it. 1 III. THE DUTY OF THE RAILWAY AS TO THE SELECTION AND RETENTION OF SERVANTS. The duty of the railway to its servants requires the exercise of care in its selection and retention of servants. 293. It is the duty of the railway to its servants to exercise due care in its selection, and retention in ser- vice, of their fellow-servants, 2 and the full performance of this obligation requires, as Harlan, J., said, in W. Ry. v. McDaniel, 3 the exercise on its part of not simply "the degree of diligence which is customary among those entrusted with the management of railway prop- erty, but such, as having respect to the exigencies of the particular service, ought reasonably to be observed," * * * and such as " is fairly commensurate with the perils or dangers likely to be encountered." 4 In order, therefore, to render the railway liable by reason of its selection or retention of an incompetent servant, it must be shown that the negligence of that servant was the proximate cause of the injury to the plaintiff, and that the officer of the railway, who is charged with the duty of appointing and dismissing servants of that class, 1 C, B. & Q. R. R. v. Avery, 109 111. 314, 17 Am. & Eng, R. R. Cas. 649. 2 Moss v. P. R. R., 49 Mo. 167; Frazier v. P. R. R., 38 Penna. St. 104; O'Donnell v. A. V. R. R., 59 Penna. St. 239 ; Rohback v. P. R. R., 43 Mo. 187 ; U. P. R. R. v. Milliken, 8 Kans. 647. 8 107 U. S. 454. * Soc also A. & F. R. R. v. Waller, 48 Ala. 459, 314 INCOMPETENCY OF SERVANTS. either knew, or ought to have known, of the incompe- tency of the servant. 1 Notice of a fellow-servant's in- competency to the officer performing, upon behalf of the railway, the duty of employing and discharging servants, or selecting them for particular service, is, of course, notice to the railway ; 2 but notice to a fellow-ser- vant is not notice to the railway, as, for instance, notice of a conductor's incapacity to a servant, whose duty it is to call the conductors for service in a designated order, is not notice to the railway of the incompetency of a conductor. 3 294. The railway will be liable if it retains in its service a servant whose habits are known to be intem- perate; 4 or an engine-driver who has habitually dis- obeyed a rule of the railway forbidding the relinquish- 1 Paterson v. Wallace, 1 Macq. H. L. 748 ; Brydon v. Stewart, 2 Id. 30 ; Weems v. Mathieson, 4 Id. 215 ; Tarrant v. Webb, 18 C. B. 797. 86 E. C. L.; H. & B. T. R. R. v. Decker, 82 Penna. St. 119 ; 84 Id. 419 ; Frazier v. P. R. R , 38 Id. 104; M. C. R. R. v. Gilbert, 46 Mich. 176, 2 Am. & Eng. R. R. Cas. 230; Murphy v. St. L. & I. M. Ry., 71 Mo. 202 ; Moss v. P. R. R., 49 Id. 169 ; El- liott v. St. L. & I. M. R. R., 67 Id. 272 ; H. & T. C. Ry. v. Myers, 55 Tex. 110 ; Gilman v. E. Ry., 10 Allen 233, 13 Id. 433 ; E. T. V. & G. R. R. v. Gurley, 12 Lea (Tenn.) 46, 17 Am. & Eng. R. R. Cas. 568 ; N. O., J. & N. Ry. v. Hughes, 49 Miss. 258 ; Howd v. M. C. R. R., 50 Id. 178 ; C, R. I. & P. Ry. v. Huflmann, 78 Mo. 50, 17 Am. & Eng. R. R. Cas. 625 ; Smith v. Potter, 46 Mich. 258, 2 Am. & Eng. R. R. Cas. 140 ; M. & O. R. R. v. Taft, 28 Mich. 289 ; Blake v. M. C. R. R, 70 Me. 60 ; C, R. I. & P. Ry. v. Doyle, 18 Kans. 58; Baulec v. N. Y. & II. R. R., 59 N. Y. 356 ; P., M. & M. R. R. v. Smith, 59 Ala. 245 ; Kersey v. K. C, St. J. & C. B. R. R., 79 Mo. 362, 17 Am. & Eng. R. R. Cas. 638. 2 H. & B. T. R. R. v. Decker. 82 Penna. St. 119, 84 Id. 419 ; Frazier v. P. R. R., 38 Id. 104; Patterson v. P. & C. R. R., 76 Id. 394; O. & M. Ry. v. Col- larn, 73 Ind. 261, 5 Am. & Eng. R. R. Cas. 554 ; T. M. R. R. v. W T hitmore, 58 Tex. 276, 11 Am. & Eng. R. R. Cas. 195 ; Tyson v. S. & N. A. R. R., 61 Ala. 554; McDermott v. H. & St. J. R. R., 73 Mo. 516, 2 Am. & Eng! R. R. Cas. 85 ; Laning v. N. Y. C. R. R., 49 N. Y. 521 ; Mann v. D. & H. C. Co., 91 N. Y. 495, 12 Am. & Eng. R. R. Cas. 199. 3 M. C. R. R. v. Dolan, 32 Mich. 510. * H. & B T. R. R. v. Decker, 82 Penna. St. 119, 84 Id. 419; C & A. R. R. v. Sullivan, 63 111. 293 ; M. C. R. R. v. Gilbert, 46 Mich. 176, 2 Am. & Eng. R. R. Cas. 230 ; Cleghorn v. N. Y. C. & H. R. R. R , 56 N. Y. 44 ; Chapman v. E. Ry., 55 N. Y. 579 ; Gilman v. E. R. R , 13 Allen 433, 10 Id. 233. INTOXICATED SERVANTS. 315 ment of the control of his engine to his fireman. 1 The proof of frequent or continued acts of negligence by a ser- vant, with knowledge thereof brought home to the railway , will fix its liability ; 2 thus, in Hilts v. C. & G. T. Ry., 3 the fact that an engine-driver had been drunk on duty three times within a period of nine months, was held to be evidence of negligence on the part of the railway in that its executive officers failed to learn of his dissipated habits, and the railway was held liable to a servant who was killed by being run over by the engine-driver's careless management of the engine at a time when he was intoxicated. But proof of specific acts of negli- gence by a servant will not establish his incompetency, nor render the railway liable for his retention, unless it be shown that the servant's negligent character either was, or reasonably ought to have been, known to the officer, who, on behalf of the railway, exercised the power of appointing and dismissing such servants ; 4 nor will the fact that an engine-driver is shown to be near- sighted and compelled to use glasses, render the railway negligent if it retains him in the service. 5 295. The duty of the railway to its servants is not adequately performed, unless care be exercised not only in its original selection of servants, but also in its sub- sequent organization, discipline, and control of those servants. The action of its servants must be intelli- gently directed and vigilantly supervised, and, to that end, judicious regulations must be made and enforced 1 O. & M Ry. v. Collarn, 73 Ind. 261, 5 Am. & Eng. R. R. Cas. 554. J Baulec v. N. Y. & H. R. R.. 59 N. Y. 35G ; Mann v. D. & H. C. Co., 91 Id. 495, 12 Am. & Eng. R. R. Cas. 199. 3 55 Mich. 437, 17 Am. & Eng. R. R. Cas. 628. 4 C, R. I. & P. Ry. v. IIufT'mann, 78 Mo. 50, 17 Am. & Eng. R. R. Cas. 625 ; Corson v. M. C. R. R., 76 Me 244, 17 Am & Eng R. R. Cas. 634; Cooper v. M. & P. R. R., 23 Wise. 668 ; P., F. W. & C. R. R. v. Ruby, 38 Ind. 294 ; Harper v. I. & St. L. R. R , 44 Mo. 488. 6 T. & P. Ry. v. Harrington, 62 Tex. 597, 21 Am. & Eng. R. R. Cas. 571. 316 DUTY IN OPERATING THE LINE. for the government of its servants in the discharge of their duties; those servants must be adequately paid; they must be promoted, or otherwise rewarded, when they merit special commendation for meritorious service ; they must be promptly punished when they fall short of a full and faithful performance of duty ; and they must be unhesitatingly dismissed when their incompe- tency has been proven. IV. THE DUTY OF RAILWAYS TO THEIR SERVANTS IN THE OPERATION OF THE LINE. The duty of the railway to its servants requires the exercise of care in its operation of its line. 296. It is the duty of railways to make regulations for the safety of their servants, and to use all reasonable means for the enforcement of those regulations, 1 but a railway is not liable to an injured servant merely be- cause his fellow-servants have disobeyed such regula- tions. 2 A railway is, however, liable if it permits its servants to habitually disregard regulations, whose en- forcement is necessary to the safety of other servants, as where a servant is injured by the careless handling of an engine by a fireman, it being proven that the engine- driver, in disobedience of the regulations of the railway, was to the knowledge of his superior officers in the habit of surrendering the control of his engine to the fireman. 3 A railway is not negligent to its servants if it varies from its regular time-table in running its trains, pro- 1 Vose v. L. & Y. Ry., 2 H. & N. 728 ; Slater v. Jewett, 85 N. Y. 61, 5 Am. & Eng. R. R. Cas. 515 ; Rose v. B. & A. R. R., 58 N. Y. 217 ; Cooper v. C. R. R., 44 Iowa 134; P., F. W. & C. Ry. v. Powers, 74 111. 341 ; L. S. & M. S. Ry. v. La valley, 36 Ohio St. 221, 5 Am. & Eng. R. R. Cas. 549. 2 Rose v B. & A. R. R., 58 N. Y. 217. 3 O. & M. Ry. v. Collarn, 73 Ind. 261, 5 Am. & Eng. R. R. Cas. 554 ; Connor v. C, R. I. & P. Ry., 59 Mo. 285. DUTY IN OPERATING LINE. 317 vided tLat it gives to its servants reasonable notice of any change, which if unknown to them, may endanger their safety j 1 but where on a single track line a special train is ordered to run when a regular train is due, and, no effort having been made to hold the regular train, a collision ensues and a servant is injured, the railway is liable, for the negligence of its superintendent is its negligence. 2 So also, where a construction train is allowed to stand on the line in a curved cutting at a time when a regular train is due, no notice being given to the engine-driver or conductor of the regular train that they may expect to find the construction train in their way, and through the failure of a labourer to properly signal the regular train, a collision having en- sued and a servant on the construction train having been injured, the railway was held liable therefor. 3 So in McLeod v. Ginther, 4 the railway was held liable to a servant injured in a collision which resulted from the negligence of a telegraph operator in so writing out an order for the movement of a train on a single track line as to convey to the mind of a train conductor the idea that he might safely occupy the line for a longer time than that time which the order was intended to give him. 297. It is the duty of the railway not to increase the perils of its servants by the inadequacy of the force employed in any particular work, and, in particular, trains must be manned by a sufficient number of train hands; 5 but a railway is not negligent to its labourers 1 Slater v. Jewett, 85 N. Y. 61, 5 Am. & Eng. R. R. Cas. 515. ■ Sheehan v. N. Y. C & II. R. R. R., 91 N. Y. 332, 12 Am. & Eng. R. R. Cas. 235. 3 P., C. & St. L. Ry. v. Henderson, Ohio St. , 5 Am. & Eng. R. R. Cas. 529. * 80 Ky. 399, 8 Am. & Eng. R. R. Cas. 162, 15 Id. 291 * Flike v. B. & A. R. R., 53 N. Y. 549 ; Booth v. B. & A. R. R., 73 Id. 38 ; 0. & E. I. R. R. v. Geary, 110 111. 383, 1° Am. & Eng. R. R. Cas. 606; 3 IS SPEED OF TRAINS. if it fails, to put a conductor in charge of a dirt train. 1 298. The fact that a train is run at a rate of speed in excess of that prohibited by statute is not necessarily negligence as to servants of the railway on the train, 2 and apart from statutory regulation no rate of speed is per se negligent, 3 but the circumstances of the particular case, such as the approach to a level crossing, or the proximity to a city, town, or village, or the defective condition of the line, may render that rate of speed neg- ligent which, under other circumstances, as, for instance, on a straight line in good order in the open country or so fenced that neither trespassing human beings nor animals can come upon it, would not be negligent. 4 The running of a train at a high rate of speed past a way station is not per se unlawful, and is not negligence as to servants engaged in work on the station platform, 5 yet, in Crowley v. B., C, R. & N. R. K., 6 where a labourer while clearing away snow in a railway yard was injured by being struck by a train moving at a rate of speed in excess of that permitted by municipal ordi- nance within the city limits, the railway was held liable. 299. A railway is negligent to those servants whose duty requires them to walk on its line, or in its yards, if it moves engines or trains at night without a head- B. & O. R. R. v. State, 41 Md. 268 ; C & N. W. Ry. v. Donahue, 75 111. 106 ; Skip v. E. C. Ry., 9 Ex. 223 ; Harvey v. N. Y. C. & H. R. R. R., 88 N. Y. 481, 8 Am. & Eng. R. R. Cas. 51) ; cf. Besel v. N. Y. C. & H. R. R. R., 70 N. Y. 171, reversing the judgment of the lower court as reported in 9 Hun 457. 1 Henry v. S. I. Ry., 81 N. Y. 373. * Dowell v. V. & M. R. R., 61 Miss. 519, 18 Am. & Eng. R. R. Cas. 42 ; Lockwood v. C. & N. W. Ry., 51 Wise. 50, 6 Am. & Eng. R. R. Cas. 151. 8 Wallace v. St. L., I. M. & S. Ry., 74 Mo. 594. * C, R. I. & P. Ry. v. Huffmann, 78 Mo. 50, 17 Am. & Eng. R. R. Cas. 625. 4 Muster v. C, St. P. & M. Ry., 61 Wise. 325, 18 Am. & Eng. R. R. Cas. 113. 6 65 Iowa 658, 18 \m. & Eng. R. R. Cas. 56. NEGLIGENCE OF FELLOW-SERVANTS. 319 light; 1 but the reversal of an engine in making up, or switching, trains is not negligence on the part of the railway ; 2 nor does the railway's duty to its train hands engaged on moving trains require it to notify them be- fore bringing the train to a sudden stop in order to avoid a collision with trespassing cattle on the line. 3 The railway is liable to its servants for injuries caused by collision with obstructions on the line which it has been negligent in not discovering and removing. 4 Nevertheless, as is hereinafter stated, the servant takes upon himself the risk of injury from the ordinary con- duct of the business, including the negligence of his fellow-servants, and the railway is only liable for such injuries as result from the non-performance of its duty to him. V. THE LIABILITY OF RAILWAYS TO THEIR SERVANTS FOR THE NEGLIGENCE OF OTHER SERVANTS. 300. A master is liable to his servants for injuries caused by his negligence while personally participating with them in the work. 5 On the same principle, where the master, by his personal interference in the conduct of a work whose performance with safety to a servant requires extraordinary care on the part of that servant, urges the servant to a degree of speed which compels him to neglect precautions which he would otherwise take, such conduct on the part of the servant is not con- tributory negligence. 6 Kailway corporations being 1 Burling v. I. C. R. R., 85 111. 18 ; C. & N. W. Ry. v. Taylor, 69 Id. 461. • Jackson v. K. C, L. & S. K. R. R., 31 Kans. 761, 15 Am. & Eng. R. R. Cas. 178. 8 M. P. Ry. v. Haley, 25 Kans. 35, 5 Am. & Eng. R. R. Cas. 594. • Wilson v. D., S. P. & P. Ry., 7 Colo. 101, 15 Am. & Eng. R. R. Cas. 192. 6 Ashworth v. Stanwix, 3 El. & El. 701, 107 E. C. L. ; Roberta v. Smith, 2 H. & N. 213; Mellors v. Shaw, 1 B. & S. 446, 101 E. C. L. • Lee v. Woolsey, 16 Weekly Notes of Cases (Penna.) 337. 320 VICE-PRINCIPALS. artificial beings and creatures of law, cannot render themselves liable by any personal participation in their servants' work, but they are, of course, liable to those ser- vants for the negligence of their fellow-servants wherever individual masters would be liable for the negligence of such servants, and the corporate character of railways neither increases nor diminishes their liability in that respect. 301. The master being liable if his own negligence in his personal participation with his servant in the work be the cause of injury to the servant, it would seem that the master ought to be equally liable if the cause of injury to the servant be the negligence of a person whom the master has placed in such a position that he can fairly be considered as the master's repre- sentative, with power to conduct the business in the exerise of an uncontrolled discretion. That the master would be liable in such a case was tacitly admitted in Murphy v. Smith, 1 and in Feltham v. England, 2 and expressly ruled in Grizzle v. Frost ; 3 and the doctrine of these cases is supported by many American cases. 4 On the other hand, in Wilson v. Merry, 5 where it was held that the operators of a mine were not responsible for the death of a° miner caused by an interruption of the free ventilation of the mine and a consequent explo- sion of fire-damp, resulting from the erection of a scaf- folding by the manager of the mine, Lord Cairns said : "what the master is, in my opinion, bound to his servants to do, in the event of his not personally super- 1 19 C. B. N. S. 361, 115 E. C. L. 2 L. E. 2 Q. B. 33. s 3 F. & F. 622. * It is sufficient to cite Corcoran v. Holbrook, 59 N. Y. 517 ; Mullan v. P. & 8. M. S. S. Co., 78 Penna. St. 25, as construed in L. V. Coal Co. v. Jones, 86 Id. 441, and in D. & H. Canal Co. v. Carroll, 89 Id. 374 ; Mann. v. D. & H. C. Co., 91 N. Y. 500 ; Pantzar v. T. F. I. M. Co., 99 N. Y. 368. 5 L. B. 1 Sc. & Div. 326. VICE-PRINCIPALS. 321 Intending and directing the work, is to select proper and competent persons to do so, and to furnish them with adequate materials and resources for the work. When he has done this he has, in my opinion, done all that he is bound to do. And if the persons so selected are guilty of negligence this is not the negligence of the master." In Tarrant v. Webb, 1 Jervis, C J., put the same view tersely, saying : " the master may be responsible where he is personally guilty of negligence, but cer- tainly not where he does his best to get competent persons. He is not bound to warrant their competency." In Howells v. L. S. Steel Co., 2 where a mine, in obedi- ence to statutory provisions, having been put by its owner under the " control " of a manager, and a miner having been killed by the negligence of that manager in fail- ing to withdraw the miners when the mine was invaded by noxious gases, it was held that the master, the op- erator of the mine, was not liable for the death so caused, Cockburn, C. J., saying : " since the case of Wilson v. Merry, it is not open to dispute that in general the master is not liable to a servant for the negligence of a fellow-servant, although he be the manager of the con- cern." It is the clear result of these cases that in Eng- land masters are not to be held liable to their servants for the personal negligence of vice-principals. 3 302. The general rule in the United States is that which is stated by Allen, J., in Malone v. Hathaway, 4 in these terras : " when the servant, by whose acts of negligence, or want of skill, other servants of the com- mon employer have received injury, is the alter ego of the master to whom the employer has left everything, reserving to himself no discretion, then the middle-man's 1 18 C. B. 804, 86 E. C. L. ■ L. R. 10 Q. B. 62. » See also D. & H. Canal Co. v. Carroll, 89 Penna. St. 374. * 64 N. Y. 5. 21 322 VICE-PRINCIPALS. negligence is the negligence of the employer, for which the latter is liable. The servant in such case represents the master, and is charged with the master's duty. '■• '■■ * * When the middle-man, or superior servant, employs and discharges the subalterns, and the princi- pal withdraws from the management of the business, or the business is of such a nature that it is necessarily committed to agents, as in the case of corporations, the principal is liable for the neglects and omissions of duty of the one charged with the selection of other servants, in employing and selecting such servants, and in the general conduct of the business committed to his care." In L. V. Coal Co. v. Jones, 1 Mercur, C. J., uses nearly identical language, saying: "where the master has placed the entire charge of the business in the hands of an agent, exercising no authority and no superinten- dence of his own therein, he may be liable for the negli- gence of such an agent to a subordinate employe." Under all the American cases a servant to whom so extensive an authority had been delegated would be held to be a vice-principal, but in many of the cases a much more limited delegation of authority is held to constitute the person entrusted therewith a vice-princi- pal. The test in some of the cases is the grant to a servant of the power of appointing and discharging subordinate servants, and as to such subordinates the servant invested with that power is held to be a vice- principal. 2 A more logical test is to be found in the grant to a servant of that discretionary and supervisory power in the administration of a railway which is neces- sarily exercised by the controlling authority of the rail- 1 86 Penna. St. 439. 2 Mnllan v. P. & S. M. S. S. Co., 78 Penna. St. 25 ;_ Smith v. S. C. & P. R. P., 15 Neb. 583, 17 Am. & Eng. R. R. Cas. 561 ; Flike v. B. & A. R. R., 53 N. Y. 549 ; McKune v. C. S. R. R., Cal. , 17 Am. & Eng. R. R. Cas. 589 ; C. & A. Ry. v. May, 108 111. 288, 15 Am. & Eng. R. R. Cas. 320. TRAIN-DISPATCHERS. 323 way, or by some agent to whom it has been specially delegated. 303. If this test be applied, it will be found that the executive officers, who direct and control the operation of the line, or of any integral portion of it, and who appoint and select subordinate servants, are vice-princi- pals, and that foremen of gangs, yard-masters, station- agents, engine-drivers, and conductors of trains, are not vice- principals, but merely fellow-servants of the ser- vants who serve under them. Upon this principle, a train-dispatcher has been held to be a vice-prin- cipal. 1 304. A foreman is merely a superior servant, and he cannot properly be regarded as an alter ego of his mas- ter. Nevertheless, in some cases, it is held that fore- men are vice-principals. 2 On the other hand, it is held in other cases, that a foreman is not a vice-principal; 3 1 McKinne v. C. S. R. R., Cal. , 21 Am. & Eng. R. R. Cas. 539 ; Darri- gan v. N. Y. & N. E. R. R., 52 Conn. 285, 23 Am. & Eng. R. R. Cas. 438 ; Phillips v. C. M. & St. P. Ry., 64 Wise. 475, 23 Am. & Eng. R. R. Cas. 453. 2 L. & N. R. R. v. Bowler, 9 Heisk. 866 ; L. M. R. R. v. Stevens, 20 Ohio 416 ; P., F. W. & C. Ry. v. Lewis, 31 Ohio St. 196 ; L. S. & M. S. Ry. v. Lavalley, 36 Id. 221, 5 Am. & Eng. R. R. Cas. 549 ; Smith v. S. C. & P. Ry., 15 Neb. 583, 18 Am. & Eng. R. R. Cas. 561 ; Cowles v. R. & D. R. R., 84 N. C. 309 ; Ragsdale v. M. & C. R. R., 3 Baxter (Tenn.) 426 ; L., C. & L. R. R. v. Cavens, 9 Bush (Ky.) 559 ; Gilmore v. N. P. Ry., 18 Fed. Rep. 866, 15 Am. & Eng. R. R. Cas. 304 ; Dobbin v. R. & D. R. R„ 81 N. C. 446. 3 Lovegrove v. L. B. & S. C. Ry.; Gallagher v. Piper, 16 C. B, N. 8. 669, 111 , E. C. L. ; Feltham v. England, L. R. 2 Q. B. 33, 7 B. & S. 676 ; Wigmore v. Jay, 5 Ex. 354 ; Wright v. N. Y. C. R. R., 25 N. Y. 565 ; Keystone Bridge Co. v. Newberry, 96 Penna. St. 246; Brick v. R., N. Y. & P. R. R, 98 N. Y. 212; L. V. Coal Co. v. Jones, 86 Penna. St. 441 ; Weger v. P. R. R., 55 Id. 460 ; Caldwell v. Brown, 53 Id. 453 ; D. & H. C. Co. v. Carroll, 89 Id. 374 ; Coon v. S. & U. R. R., 5 N. Y. 492 ; Willis v. O. Ry. & N. Co., 11 Oregon 257, 17 Am. & Eng. R. R. Cas. 539 ; Peschel v. C, M. & St. P. Ry., 62 Wise. 338, 17 Am. & Eng. R. R. Cas. 545 ; Marshall v. Strieker, 63 Mo. 308 ; Gowan v. St. L. & I. M. R. R., 61 Id. 528 ; Rains v. St. L., I. M. & S. Ry., 71 Id. 164, 5 Am. & Eng. R. R. Cas. 610; Shauek v. N. C. R. R., 25 Md. 462; Thayer n St. L., A. & T. II. R. R., 22 Ind. 26 ; Fraker v. St. P., M. & M. Ry., 32 Mina 54, 15 Am. & Eng. R. R. Cas. 256 ; Copper v. L. E. & St. L. Ry., Ind. 22 Am. & Eng. R. R. Cas. 277. 324 FOREMEN". thus, in Feltham v. England, 1 the defendant was a maker of locomotive engines, and the plaintiff was a workman in his service ; while an engine was being hoisted on a travelling crane resting on brick piers, the plaintiff, under the directions of the defendant's fore- man or manager, having gotten on the engine, was injured by its fall, resulting from the giving way of the piers. After a verdict for the plaintiff a rule to enter a nonsuit was made absolute, Mellor, J., saying, " the master still retained the control of the establishment, and there was nothing to show that the manager or foreman was other than a fellow-servant of the plaintiff, although he was a servant having greater authority." 305. In some of the cases it is held that the conduc- tors of trains are vice-principals, as to the engine-drivers, firemen or stokers, and train hands or guards, of their trains; 2 thus, in C, C. & C. Ry. v. Keary, 3 where a railway was held liable to a train hand for injuries caused by the negligence of the conductor of his train, Ranney, J., suggests the following reasons for the con- clusion to which the court came, " that the principal is, by anything incident to the contract of service, re- leased from his obligation to everybody to superintend and control the business with care and prudence, so as to prevent injury, we think wholly unsupported by rea- son, and, as yet, nearly so, by authority. For this pur- pose (i. e., to superintend and control with skill and care the dangerous force exerted), the conductor is em- ployed, and, in this, he directly represents the company. They contract for and engage his care and skill. They 1 L. R. 2 Q. B. 33. * C, C. & C. Ry. v. Keary, 3 Ohio St. 254 ; L. M. R. R. v. Stevens, 20 Ohio 415; C, M. & St. P. Ry. v. Ross, 112 U. S. 377; Moon v. R. & A. R. R., 78 Va. 745, 17 Am. & Eng. R. R. Cas. 531 ; Cowles v. R. & D. R. R., 84 N. C. 309 2 Am. & Eng. R. R. Cas. 90. 8 3 Ohio St. 254. CONDUCTOKS. 325 commission him to exercise that dominion over the operations of the train, which essentially pertains to the prerogatives of the owner, and in its exercise he stands in the place of the owner, and is in the discharge of a duty which the owner, as a man and a party to the contract of service, owes to those placed under him, and whose lives may depend on his fidelity. His will alone controls everything, and it is the will of the owner that his intelligence alone should be trusted for this purpose. This service is not common to him and the hands placed under him. They have nothing to do with it. His duties and their duties are entirely separate and distinct, although both are necessary to produce the result. It is his to command, and theirs to obey and execute. No service is common that does not admit a common participation ; and no servants are fellow-servants when one is placed in control over the other. * * * It is the duty of the servants to obey the orders of the superior thus placed over them, and to perform as he shall direct. * * * But they cannot be made to bear losses arising from carelessness in conducting the train, over which their employer gave them no power or control, either separately or collectively, until we are prepared to say that justice and public policy require the conse- quences of duty omitted by one party to be visited upon the other, although stripped of all power to prevent such consequences." So, in C, M. & St. P. Ry. v. Ross, 1 the plaintiff, an engine-driver in the defendant's employ- ment, was injured in a collision on a single track line, caused by the neglect of the conductor of his train to communicate to him a telegraphic order received by the conductor from the train-dispatcher, directing the train to pass another train at a certain siding. Judgment upon a verdict for the plaintiff was affirmed in an opin- 112 u. s. 377. 826 CONDUCTORS. ion delivered by Field, J., and concurred in by Waite, C. J., and by Miller, Harlan, and Woods, JJ., but dis- sented from by Bradley, Matthews, Gray, and Blatch- ford, JJ. The ground of decision, as stated by Field, J., is, that " the conductor of a railway train, who com- mands its movements, directs when it shall start, at what stations it shall stop, at what speed it shall run, and has the general management of it and control over the persons employed upon it, represents the company," and, therefore, his negligence is the negligence of the company. These cases are obviously open to criticism. The judgments therein seem to be based on a misunder- standing of the practical method of railway operations. It is far from accurate to say, as Banney, J., said of a railway conductor in C, C. & C. By. v. Keary, 1 " his will alone controls everything," or to assume, as Field, J., assumes, in C. M. & St. P. By. v. Boss, 2 that such an official "commands its" (the train's) "movements, directs when it shall start, at what stations it shall stop, at what speed it shall run, and has the general manage- ment of it, and control over the persons employed upon it." In fact, the negligence on the part of the con- ductor, which was the subject of complaint in that case, was, not that he had improperly exercised a discretion vested in him, but that he had failed to show to the engine-driver, and on his own part to obey, an express order from his superior officer, the train-dispatcher, commanding the train to wait at a particular station until the arrival of a certain other train. The facts upon which the plaintiff's claim was founded, therefore, negative the theory upon which the railway was held liable. As Folger, C. J., said, in Slater v. Jewett, 3 courts may well take judicial notice of the fact that "the 1 3 Ohio St. 254. ■ 112 TL S. 395. 3 84 N. Y. Gl, 5 Am. & Eng. R. R. Cas. 515. ENGINE-DEIVEES. 327 great railways of the land are managed in the every-day practical running of them, by over-looking officers at distant places, who use the telegraph wires to keep all the while informed where trains are, and to direct their movements from hour to hour." In railway practice a conductor cannot run his train as a master sails his ship. No discretion is vested in him. The time-table, as arranged by his superior officers, pre- scribes the point and hour of departure of the train, the time at which it is to pass each station on its way, its place and hour of final stoppage, and fixes, by necessary implication, its speed between the several stations. The conductor is bound, in the running of his train, to rigidly adhere to that time-table, unless otherwise di- rected by a special order from competent authority. So far, therefore, from being a vice-principal, or an execu- tive officer to whom is delegated, in the words of Kan- ney, J., "that dominion over the operations of the train which essentially pertains to the prerogatives of the owner," a conductor is merely the foreman of the hands employed on the train, and, as such, he is their fellow- servant. That conductors of trains are not vice-princi- pals, but fellow-servants, as to the engine-drivers, fire- men or stokers, and train hands or guards of their trains, is held in two well-reasoned Wisconsin cases. 1 306. It is held in some cases that an engine-driver is a vice-principal as to his fireman or stoker, and as to train -hands and labourers. Thus, in L. & N. R. K. v. Collins, 2 Robertson, C. J., said, that "in the use and control of the engine, the engineer acts as the repre- sentative agent of the common superior — the corpora- 1 Heine v. C. & N. W. Ry., 58 Wise. 528 ; Pease v. C. & N. W. Ry., 61 Id. 163, 17 Am. & Eng. R. R. Cas. 527. 2 2 Duvall 114. 328 servants' neglect of railway's duty. tion." This view is as unsound in theory as it is un- supported by other respectable authority. 307. It is obvious that the servant, whose negligence has caused the injury, may in the discharge of one class of duties act as a vice-principal, and in the discharge of another class of duties he may be only a fellow- servant. The liability of the railway to the injured servant will then be dependent upon the character of the duty whose non-performance by the negligent ser- vant was the cause of the injury. 1 308. It is clear that that negligence of a servant, which is the cause of injury to another servant of a common master, must consist either in his carelessness while personally participating with that other servant in the work of their common master, or in his failure to perform a duty to the injured servant which the im- plied contract of service has devolved upon their master, and the performance of which duty the master has dele- gated to him, such as the exercise of due care in either the provision and maintenance in repair of the instru- mentalities of labour, or in the selection and retention in service of the injured servant's fellow-servants. If the servant's negligence be of the former character, the railway ought not to be held liable therefor, if due care has been exercised in the selection and retention in service of the negligent servant, and if that negligent servant be not a vice-principal, for, as is shown in a subsequent section, every servant impliedly undertakes to bear the risk of the negligence of those fellow-ser- vants, in whose selection or retention in service the master has not been negligent. If, however, the negli- gence be of the latter character, whatever be the rank of the negligent servant, or the degree of authority 1 Brick v. K., N. Y. & P. Ry., 98 N. Y. 212; Crispin v. Babbitt, 81 Id. 516; McCosker v. L. I. R. R., 84 Id. 77. NEGLECT OF RAILWAY'S DUTY. 329 vested in him, the master ought to be held liable, upon the principle stated by Blackburn, J., in The Mersey Docks Trustees v. Gibbs, 1 that "the liability for an omission to do something depends entirely on the extent to which a duty is imposed to cause that thing to be done ; and it is quite immaterial whether the actual actors are servants or not." In this connection, also, it may well be remembered that Byles, J., said, with great force, in his judgment in the Exchequer Chamber in Clarke v. Holmes, 2 that " if a master's personal knowl- edge of defects in his machinery be necessary to his liability, the more a master neglects his business, and abandons it to others, the less will he be liable." The true rule, therefore, is that " no duty belonging to the master to perform for the safety and protection of his servants can be delegated to any servant of any grade so as to exonerate the master from responsibility to a servant who has been injured by its non-perform- ance." 3 309. Upon this principle it has been held in many cases, that, as it is the duty of the railway to its ser- vants to take due care that its line, 4 rolling stock, ma- chinery, and appliances 5 are in a safe condition for 1 L. R. 1 H. L. 115. '7H.&N, 949. 8 Mann v. D. & H. C. Co., 91 N. Y. 500 ; Booth v. B. & A. R. R., 73 N. Y. 40 ; Pantzar v. T. F. I. Co., 99 N. Y. 368 ; Benzing v. Steinway, 101 N. Y. 547. * Drymala v. Thompson, 26 Minn. 40; Lewis v. St. L. & I. M. Ry., 59 Mo. 495 ; Hall v. M. P. Ry., 74 Id. 298 ; C. C. R. R. v. Ogden, 3 Colo. 499 ; Porter v. H. & St. J. R. R., 71 Mo. 66, 2 Am. & Eng. R. R. Cas. 44. 5 Hough v. T. & P. Ry., 100 U. S. 213 ; Fuller v. Jewett, 80 N. Y. 46 ; Ford v. F. R. R-, 110 Mass. 241 ; P. & N. Y. C R. R. v. Leslie, 16 Weekly Notes of Tases (Penna.) 321 ; C, B. & Q. R. R. v. Avery, 109 111. 314, 17 Am. & Eng. R. R. Cas. 649 ; II. & T. C. Ry. v. Marcelles, 59 Tex. 334, 12 Am. & Eng. R. R. Cas. 231 ; C. & N. W. Ry. v. Jackson, 53 111. 492 ; Indiana Car Co. v. Parker, 100 Ind. 191 ; Gunter v. G. Mfg. Co., 18 S. C. 262 ; A., T. & S. F. Ry. v. Moore, 29 Kans. 632, 11 Am. & Eng. R. R. Cas. 243, 31 Kans. 197, 15 Am. & Eng. R. R. Cas. 312; Gilmore v. U. P. Ry., 18 Fed. Rep. 866, 15 Am. & Eng. R. R Cas. 304; Lawless v. C. R. R. R., 136 Mass. 1, 18 Am. & Eng. 330 NEGLECT TO INSPECT. operation, and to take due care that its servants' fellow- servants are selected with care; 1 the omission to exer- cise that care in either respect necessarily fixes the liability of the railway, whatever be the rank of the servant to whom the railway has delegated the perform- ance of that duty. It follows that the duty of inspec- tion being a duty whose performance is incumbent on the railway, the railway is liable where that duty is neglected or carelessly performed by the servant to whom it has been entrusted; 2 thus, in Hough v. T. & P. Ry., 3 where the railway was held liable for the death of an engine-driver caused by the defective condition of the engine, which was due to the negligence of those servants of the railway, who were charged with the duty of inspecting and directing the repairs of engines, Harlan, J., said (p. 218) : " a railroad corporation may be controlled by competent, watchful, and prudent directors, who exercise the greatest caution in the selec- tion of a superintendent or general manager, under whose supervision and orders its affairs and business in R. R. Cas. 9G ; T., W. & W. Ry. v. Ingraham, 77 111. 309 ; Davis ?<. C. V. R. R., 55 Vt. 84, 11 Am. & Eng. R. R. Cas. 173; Ryan v. C. & N. W. Ry., 60 111. 171. i Laning v. N. Y. C. R. R., 49 N. Y. 521 ; II. & B. T. R. R. v. Decker, 82 Penna. St. 119, 84 Id. 419 ; Frazier v. P. R. R., 38 Id. 104; Patterson v. P. & C. R. R., 76 Id. 394; O. & M. Ry. v. Collarn, 73 Ind. 261, 5 Am. & Eng. R. R. Cas. 554; T. M. R. R. D.Whitmore, 58 Tex. 276, 11 Am.& Eng. R. R. Cas. 195 ; Tyson v. S. & N. A. R. R., 61 Ala. 554 ; McDermott v. H. & St. J. R. R., 73 Mo. 516, 2 Am. & Eng. R. R. Cas. 85 ; Flike v. B. & A. R. R., 53 N. Y. 549 ; Booth v. B & A. R. R, 73 N. Y. 38. 2 Durkin v. Sharp, 88 N.Y. 225, 8 Am. & Eng. R. R. Cas. 520; Kain v. Smith, 80 N. Y. 458, 2 Am. & Eng. R. R. Cas. 545 ; Fay v. M. & St. L. Ry., 30 Minn. 231, 11 Am. & Eng. R. R. Cas. 193; Drymala v. Thompson, 26 Minn. 40 ; Long v. P. R. R., 65 Mo. 225 ; Pantzar v. T. F. I. M. Co., 99 N. Y. 368 ; Cooper v. P., C. & St. L. R. R , 24 W. Va. 37, 21 Am. & Eng. R. R. Cas. 501, note; Schultz v. Ry., 48 Wise. 375; M. P. Ry. v. Condon, 78 Mo. 567, 17 Am. & Eng. R. R. Cas. 583; Long v. P. Ry., 65 Mo. 225; King r. M. By., 14 Fed. Rep. 277, 8 Am. & Eng. R. R Cas. 119; Brann v. C, R. I. & P. Ry., 53 Iowa 595 ; Tierney v. M. & St. L. Ry-, Minn. , 21 Am. & Eng. R. R. Cas. 545. 3 100 U. S. 213. NEGLECT TO INSPECT. 331 all of its departments are conducted. The latter, in turn, may observe the same caution in the appointment of subordinates at the head of the several branches or departments of the company's service. But the obli- gation still remains to provide and maintain in suitable condition the machinery and apparatus to be used by its employes, an obligation the more important, and the degree of diligence in its performance the greater, in proportion to the dangers which may be encountered. Those, at least, in the organization of the corporation who are invested with, controlling or superior authority in that regard represent its legal personality; their negligence, from which injury results, is the negligence of the corporation. The latter cannot, in respect of such matters, interpose between it and the servant who has been injured without fault on his part, the personal responsibility of an agent, who, in exercising the mas- ter's authority, has violated the duty he owes, as well to the servant as to the corporation. To guard against misapplication of these principles, we should say that the corporation is not to be held as guaranteeing or warranting the absolute safety under all circumstances, or the perfection in all its parts, of the machinery or apparatus which may be provided for the use of em- ployes. Its duty in that respect to its employes is dis- charged when, but only when, its agents, whose business it is to supply such instrumentalities, exercise due care as well in their purchase originally as in keeping and maintaining them in such condition as to be reasonably and adequately safe for use by employes." So in N. P. K. R. v. Herbert, 1 where the railway was held liable to a yard hand for injuries caused by the negligently de- fective condition of the brake, draw-bar, and bumper 1 116 U. S. 642. 332 NEGLECT TO INSPECT. of a car, Field, J., said : " it is equally well settled, however, that it is the duty of the employer to select and retain servants who are fitted and competent for the service, and to furnish sufficient and safe materials, machinery, or other means by which it is to be per- formed, and to keep them in repair and order. This duty he cannot delegate to a servant so as to exempt himself from liability for injuries caused to another servant by its omission. Indeed, no duty required of him for the safety and protection of his servants can be transferred so as to exonerate him from such liability." So in Mann v. D. & H. C. Co., 1 where the railway was held liable for the negligence of a freight conductor, who, in selecting at the request of the yardmaster at a way station, from his train hands, the one who was to signal and stop an approaching train, made choice of one Townsend, a young and inexperienced servant who had only once before flagged a train at night, and who had on that occasion so negligently performed the duty that he was then discharged from the service, but sub- sequently reinstated, Andrews, J., said : " it would be unreasonable that the master should confer upon a sub- ordinate the power to select a man for so important a duty as that entrusted to Townsend, and be exonerated from responsibility on the ground that the subordinate was negligent in its performance." 310. On the other hand, in Wigmore v. Jay, 2 which was decided in 1850, the plaintiff' 's decedent, a brick- layer in the employment of the defendant, a master builder, was killed by the fall of a scaffolding resulting from the unsoundness of a pole, whose unsoundness had been brought to the notice of the defendant's foreman, but the defendant took no part in the erection of the 1 91 N. Y. 495, 12 Am. & Eng. K. E. Cas. 199. s 5 Exch. 354. NEGLECT OF MASTER'S DUTY. 333 scaffolding, and the unsoundness of the pole was not brought to his notice. At the trial Pollock, C. B., directed a verdict for the defendant, on the ground that as the defendant bad not personally attended to the erection of the scaffold, the action could not be main- tained, and a rule for a new trial was refused. So in Gallagher v. Piper, 1 where the plaintiff being employed in constructing a scaffolding for a building which the defendants, who were builders, were engaged in erecting, and having unavailingly applied for more boards to Phear, the defendants' "general foreman or manager," was injured in falling from the scaffold, which was insufficient and unsafe to the knowledge of Phear, but not to the knowledge of the defendants, who did not personally interfere with the work ; after a verdict for the plaintiff a rule for a new trial was made absolute. Erie, C. J., and Wiles, J., held that Wigmore v. Jay, 2 was a conclusive authority for holding Phear to be a fellow-servant. Williams, J., said: "the doubt I enter- tain is whether Phear was not rather a sort of deputy- master than a fellow-workman of the plaintiff, so that a notice of the insufficiency of the materials to him would be notice to the defendants themselves. Looking, how- ever, at the evidence here I do not find enough to war- rant the conclusion that Phear was intended to stand in the place of the defendants, so as to bind them by his acts or omissions in this respect." Willes, J., said : " it is true he (Phear) filled a superior position, but still he was a servant, and I am unable to draw any distinction, in this respect, between one description of servant and another, so long as that relation of master and servant exists, and the party injured and the person whose neg- ligence caused the injury are employed under one common master. If this had been the case of a person, 1 16 C. B. N. S. 669, 111 E. C. L. * 5 Exch. 354. 334 NEGLECT OF MASTER'S DUTY. who might be said to have authority to act for the master as a kind of universal agent, I should have been prepared to consider the suggestions thrown out by my brother Byles in his judgment in Clarke v. Holmes, and see whether he could come within the denomination of servant at all. But, before I could bring myself to say that such an agent did not come within the rule, I should take time to look into the subject, and especially to con- sider the position of that most authoritative of all agents, the master of a ship. I should like to consider whether, if the master of a ship, without the knowledge of his owners, were to start from an intermediate port with the vessel in a damaged and unseaworthy condition, and he was in consequence driven on shore or upon a rock and some of the crew thereby sustained personal injury, it would be just or reasonable to hold the owners to be liable to the sailors as they would undoubtedly be to third persons. But it is unnecessary to discuss that here, for it is plain that Phear was as much a servant of the defendants as was any one of the labourers em- ployed under his direction and control." Byles, J., said, in his dissenting judgment: "lie (Phear) was not merely the foreman or manager pro hac vice, but had been the general manager of the defendants' works for many years, about twenty-four or twenty-five years. He had the entire management of the men employed under him, engaging them and dismissing them as he thought fit. * * * He was acting-master. At all events, there was evidence for the jury that such was his posi- tion. Take the case of a large builder, who is never seen near his work, but who trusts the entire conduct of his business to a foreman or manager, who is eyes, ears, tongue, brains, and everything to him. Is not the master liable for acts of negligence of his employe (for I will not use the term 'servant,' which, like that of NEGLECT OF MASTER'S DUTY. 335 'foreman,' is susceptible of many meanings), whilst act- ing thus for him ? If these defendants had been a cor- poration aggregate they must have employed somebody to represent them. Take the case of a railway company employing a general traffic manager, and through his negligence an accident happens to a servant of the com- pany — is it to be said that the party injured is without remedy because the corporation is incapable of personal misconduct ? If the rule relied on be found so incon- venient that it cannot be applied to a case like that, ought it to be applied here ? That depends very much on the position of Phear. If he had been a servant, though a superior one, I should have entertained some doubt, but I do not think he stood in the position of a servant at all. He stood rather in the position of a general agent for the defendants. It is true he was called the foreman, but that is a word the meaning of which is extremely various. The case of Wigmore v- Jay is distinguishable in this, that there it does not ap- pear that the person whose negligence caused the acci- dent was anything more than foreman for the particular work." The judgments of the House of Lords in Wilson v. Merry, and of the Common Pleas in Tarrant v. Webb, have been referred to in section 299. The English rule is adopted in some American cases in which it is held that inspectors of car repairs are fellow- servants of train hands, and that railways are not liable for injuries caused by the negligence of such inspectors. 1 311. Briefly stated, the doctrine of the English cases amounts to this, that the master impliedly contracts, not that he will personally provide the instruraentali- 1 C. & X. R. R. v. Webb, 12 Ohio St. 475 ; Smith v. Potter, 46 Mich. 258, 2 Am. & Eng. R. R. Gas. 140 ; L. M. R. R. t>. Fitzpatrick, 42 Obio St. 318, 17 Am. & Eng. R. R. Cas. 578; Mackin v. B. & A. R. R., 135 Mass. 301, 15 Am. & Eng. R. R. Cas. 196 ; N., C. & St. L. Ry. v. Foster, Tenn. , 11 Am. & Eng. R. R. Cas. 180 ; Gibson v. N. C. Ry., 22 Hun 289. 336 ENGLISH AND AMERICAN RULES. ties of the servant's work, but that he will not be negli • gent in his selection or retention of the servants whom he charges with that duty, and that, therefore, on the basis of that implied contract, a servant necessarily as- sumes as a risk incident to his employment, not only the danger of injury from the negligence of those fel- low-servants with whom he is, either remotely or nearly, associated in the performance of his work, but also, and equally, the danger of injury from the negli- gence of those fellow-servants whom the master has charged with the duty of supplying and maintaining in repair the instrumentalities of the work. On the other hand, the doctrine of the American cases is, that the ex- ercise of care in the construction, inspection, and mainte- nance in repair of the instrumentalities of labour, is, by the implied contract of a service, imposed upon the master as a duty, and that, therefore, the non-perform- ance of the duty renders him liable for such injuries as may result from that non-performance. The point of divergence in the cases is, therefore, in their differing conception of the master's implied contract, and the difficulty in accepting the view laid down in the Eng- lish cases is, that they limit the master's duty of exer- cising care in the provision and maintenance in repair of the instrumentalities of labour, and in the selection of fellow-servants, to the mere exercise of care in the selection of the servant to whom the master delegates that duty ; whereas, the duty being incumbent upon the master, its non-performance ought, in justice, to fix his liability, without reference to the character of the agency to whom he may delegate the performance of the duty. 312. Nevertheless, in the consideration of this sub- ject, it must be borne in mind, that, under the Ameri- can rule, the railway does not guarantee to its servants PROXIMATE AND REMOTE CAUSE. 66< the soundness of the appliances of labour which it fur- nishes to those servants, or the infallibility of its in- spection of those appliances, or the intelligence and dis- cretion of its other servants ; but it only guarantees that those to whom it delegates its duty of constructing, inspecting, and maintaining in repair the instrumental- ities of labour, and of selecting and retaining its other servants, will not be negligent in the performance of the duty thus delegated to them. In other words, the rail- way is not an insurer of the result of the exercise of the delegated authority, but it does contract that that delegated authority shall be exercised with due care. Therefore, when the railway has done its duty in the construction, inspection, and maintenance in repair of the instrumentalities of labour, and in the selection of fellow-servants, it is not to be held liable for injuries to. a servant that result solely from the negligence of his fellow-servants. Where the negligence of the railway in supplying defective appliances is the proximate cause of injury to a servant, it is no defence to the railway that the negligence of a fellow-servant concurred in causing the injury. 1 Nor is it a defence to the railway that the injury was caused by the negligence of a fellow- servant of the injured person concurring with the rail- way's proximate negligence in sending out a train with an inadequate force of train hands;' 2 but where the negligence of a fellow-servant is the proximate cause of injury to a servant, the concurrence of negligence on 1 G. T. Ry. v. Hammings, 106 U. S. 700 ; Ellis v. N. Y., L. E. &. W. It. K., 95 N. Y. 546, 17 Am. & Eug. R. R. Cas. 641 ; Cone v. D., L. & W. R. R., 81 N. Y. 207, 2 Am. & Eng. R. R. Cas. 57; Pauimier v. E. Ry., 5 Yroom 151 ; Crutchfield v. R. & D. R. R., 76 X. ' '. 320; A, T. & S. F. K. U. v. Bolt, 29 Kans. 14;;, 11 Am. & Eng. R. R. Cas. 206; Lawless v. C. R. R. R., 136 Mass. 1, 18 Am. & Eng. R. R. Cas. 96 ; Elmer v. Locke, 133 Mass. 575, 15 Am. & Eng. R. R. Cas 300; Ransicr v. M. & St. L. Ry., 32 Minn. 331, 21 Am. & Eng. R. R. Cas. 601 ; Stringham v. Stewart, 100 N. Y. 516. 3 Booth v. B. & A. R. K., 73 X. Y. 38. 22 338 MINOR SERVANTS. the part of the railway, either in supplying the defec- tive appliances, 1 or in failing to provide an adequate force of servants, 2 will not render the railway liable for the injury. Where a machine consists of separate parts, which must be put together before the machine can be operated, an injury to a servant resulting from the insufficient putting together of those parts cannot be said to be due to the failure of the railway to provide safe appliances ; and when such parts are insufficiently put together by a fellow-servant of the injured servant, the railway is not liable, for the negligence is not its own but that of the fellow-servant. 3 VI. THE LIABILITY OF RAILWAYS TO THEIR MINOR SERVANTS. 313. It is the duty of a railway to its minor servants to exercise a reasonable care for their safety, and not to place them in positions of danger unsuited to their years and capacity. 4 Nevertheless a minor servant, if he be of more than tender years, takes upon himself the ordinary risks of the service, including the risk of in- jury from the negligence of his fellow-servants. 5 In 1 Pease v. C. & N. W. Ry., 61 Wise. 163, 17 Am. & Eng. R. R. Caa. 527. 2 Harvey v. N. Y. C. & H. R. R. R., 88 N. Y. 481, 8 Am. & Eng. R. R. Caa 515. s Peschel v. C. M. & St. P. Ry., 62 Wise. 338, 17 Am. & Eng. R. R. Cas. 545 * Hill v. Gust, 55 Ind. 45; St. L. & S. E. Ry. v. Valirius, 56 Ind. 511 : Coombs v. N. B. Cordage Co., 102 Mass. 522 ; Penna. Co. v. Long, 94 Ind. 250 15 Am. & Eng. R. R. Cas. 345. 5 Viets v. T. A. A. & G. T. Ry., 55 Mich. 120, 18 Am. & Eng. R. R. Cas. 11 fl. & G. N. R. R. v. Miller, 51 Tex. 270 ; Gartland v. T. W. & W. Ry., 67 111 498 ; King v. B. & W. R. R., 9 Cush. 112 ; T. & P. Ry. v. Carlton, 60 Tex. 397, 15 Am. & Eng. R. R. Cas. 350 ; Greenwald v. M. H. & O. Ry., 49 Mich. 197 8 Am & Eng. R. R. Cas. 133; McGinnis v. C. S. B. Co., 49 Mich. 466, 8 Am * Eng R. R. Cas. 135 ; Youll v. S. C & P. Ry., 56 Iowa 346, 21 Am. & Eng U. R. Cas. 589. MINOR SERVANTS. 330 this connection the case of U. P. E. K. v. Fort 1 must be considered. The facts in that case were, that the in- jured servant, a boy of sixteen years of age, who had been, with his father's consent, engaged as a helper to a workman in a railway's machine shop, with the obli- gation of obeying that workman's orders, was, on one occasion several months after his entry into the service, ordered by that workman to ascend a ladder resting on a shaft among rapidly moving and dangerous machinery for the purpose of adjusting a belt which had gotten out of place, and having been injured by acting in obedience to that order the father brought an action to recover damages for a breach of the contract of service. Dillon, J., left it to the jury to find whether, or not, the duty imposed upon the minor servant by the order of the workman was within the contract of service ; and he further directed them, that if that duty was not within the contract of service, and if the imposition of that duty upon the minor was wrongful and negligent, the railway was liable therefor, for " the principle, that the master is not liable for the neglect of a co- employe in the same service has no application, or no just applica- tion, to such a case." The report is not very explicit, but the jury appear to have found generally for the plaintiff, and also, specially, that the injured servant was engaged to serve under the workman, and " was re- quired to obey his orders," that the order of the work- man, in obeying which the minor was injured, was not within the scope of the minor's duty, but was within that of the workman, was not a reasonable one, and that a prudent man would not have ordered the minor to perform it. Judgment for the plaintiff on this verdict was affirmed in the Supreme Court of the United States, 1 17 Wall. 553. 340 MINOR SERVANTS. Bradley, J., dissenting. Davis, J., put the judgment of affirmance on the ground that the general rule of the master's exemption from liability for injury done to a servant by the negligence of a fellow-servant, being founded upon the servant's implied undertaking to bear the risk of injury from such negligence, was inapplica- ble, because the act in the doing of which the minoi servant was injured was not within the contract of ser- vice, and he added, somewhat inconsequently, "if it were otherwise, principals would be released from all obligation to make reparation to an employe in a subor- dinate position for any injury caused by the wrongful conduct of the person placed over him, whether they were fellow-servants in the same common service or not." He further said, referring to the workman's order to the injured servant : " for the consequences of this hasty action the company are liable, either upon the maxim of respondeat sujierior, or upon the obligation arising out of the contract of service. The order of Collett (the workman) was their order." The judgment in this case is open to obvious criticism. The injured servant was not an infant of tender year's, nor an inexperienced servant. He was a boy of sixteen years of age, who had had the experience of " several months " of service in the railway's machine shop. His father, by his con- sent to the contract of service, had impliedly undertaken on his behalf to bear the risk of the very injury that happened, for the jury found specially that by the contract of service the boy was required to obey the workman's orders. The workman was not a vice-prin- cipal unless every superior servant is as to every inferior servant to be held to be a vice-principal. With this case there can be profitably contrasted Murphy v. Smith, 1 1 19 C. B. N. S. 361, 115 E. C. L. MINOR SERVANTS. 341 which, although cited upon the argument of U. P. K. R v. Fort, was not noticed by Davis, J., in his judg- ment. In the English case the defendant was the pro- prietor of a lucifer match factory ; one Simlack was his foreman, or general manager, and under him was a workman named Dehor, who, in Simlack's absence, as- sumed the managment of the establishment ; the plain- tiff, a boy of sixteen years of age, having been engaged by Simlack as the defendant's servant, undertook, with- out any direction from Dehor, but in his presence, to perform a part of the process of making matches which it was not his duty to do, and which if not done skil- fully was dangerous, and in doing that he was injured. There was no proof that Simlack was absent at the time. After a verdict for the plaintiff, the court made absolute a rule to enter a nonsuit, on the ground that while there was evidence that Simlack was a vice-principal, there was no such evidence as regards Dehor, w T ho must Bewconsidered as only a fellow T -servant, for whose negli- gence the defendant was not to be held liable. As the result of a careful comparison of these cases, I venture to think that Murphy v. Smith was rightly, and U. P. R P. v. Fort wrongly, decided. 314. Where a railway receives into its service a minor without the consent of his father, or, if the father be dead, of his mother, and the minor be injured without fault upon his part, the railway is liable therefor to the father, or, if the father be dead, to the mother j 1 but if the minor has, with his parents' consent, been taken into the railway service to work in a railway yard, the fact that he is afterwards, with his own consent, put on duty as a brakeman on the line, is not on the part of the railway 1 Hamilton v. G., H. & S. A. Ry., 54 Tex. 556, 4 Am. & Eng. B.B. Cas. 528 ; H. & G. N. R. R. v. Miller, 49 Tex. 322 ; O. & M. Ry. v. Tindall, 13 Ind. 866 ; Penna. Co. v. Long, 94 Ind. 250, 15 Am. & Eng. R. R. Cas. 345. 342 servants' undertaking of risks. such negligence as renders it liable for injuries happen- ing to him. 1 In G. K. & I. E-. R. v. Showers, 2 where a minor servant, who had heen engaged without the con- sent of his father, was killed by the negligence of his fellow-servants, the recovery was limited to the reason- able value to the parent of his son's services during the period of his engagement with the railway. 3 VII. THE SERVANT'S IMPLIED UNDERTAKING TO BEAR THE RISKS INCIDENT TO THE SERVICE. Railway servants do not impliedly take vpon themselves the risk of in- jury from the railway's non-performance of its duty, either in sup- plying or maintaining the appliances of labour, or in selecting or retaining servants ; hut they do take upon themselves the ordinary risks of the service, including the negligence of their fellow-servants. 315. Railway servants, as has been stated, do not take the risk of injury from the railway's failure to per- form its duty in constructing and maintaining in repair its line, rolling stock, machinery, and appliances, nor in exercising due care in its selection or retention of its other servants ; nor do they take the risk of injury from the negligent participation of the railway's vice- principals in their work ; but they do take the risk of injury from those dangers which are necessarily inci- dent to the service upon which they have entered, and which do not result from negligence on the part of the railway. 4 The rule is nowhere more clearly stated than 1 T. & P. Ry. v. Carlton, 60 Tex. 397, 15 Am. & Eng. R. R. Cas. 350. 2 71 Ind. 451, 2 Am. & Eng. R. R. Cas. 9. 8 See also C. & G. E. R. R. v. Harney, 28 Ind. 28. 4 Hutchinson v. Y., N. & B. Ry., 5 Ex. 343 ; Riley v. Baxendale, 6 H. & N. 445 ; Wigget v. Fox, 11 Ex.832, which is sometimes cited in support of this proposition, is explained by Cliannell, B., in Abraham v. Reynolds, 5 II. & N. 143, and is criticised by Cockburn, C. J., in Rourke v. Colliery Co., 2 C. P. D. 207 ; Penna. Co. v. Lynch, 90 111. 334 ; St. L. & S. E. Ry. v. Britz,72 Id. 261 ; Clark v. C. E. & Q. R. R., 92 Id. 43; C. P. Mfg. Co. v. Ballou, 71 Id. 418; servants' undertaking of risks. 343 in C. & X. R R. v. Webb, 1 by Sutcliff, C. J., who says : " a person who seeks and engages in any employment thereby assumes the ordinary risk, hazard, and danger incident to the place and the duties which, for the con- sideration agreed upon, he has undertaken to discharge. This is equally true of employes upon railroad trains as well as elsewhere, and in all other kinds of business and positions. Whether the employe seek employment in a machine shop, or on board a steamboat, upon a railroad train, or to pilot rafts over dangerous rapids, to labour in a powder-mill, or to serve upon a whale ship, or upon a voyage of discovery in the Arctic regions ; in each and all of the several employments and positions chosen, the employe, by entering the service voluntarily, takes upon himself the hazard and dangers properly incident to the service in which he engages ; and the employer is, in no sense, from the relation they sustain to each other, a warrantor of the safety of the employe." So, in Sweeney v. B. & J. E. Co.. 2 Danforth, J., said : "the general rule is, that the servant accepts the service, sub- ject to the risks incidental to it ; and where the ma- chinery and implements of the employe's business are at that time of a certain kind or condition, and the servant knows it, he can make no claim upon the mas- ter to furnish other or different safeguards." 316. There is no implied obligation upon the part of the master to indemnify the servant against the ordi- nary risks of the service, and the servant, when injured, can only recover upon proof that the master knew of a danger which was unknown to the servant, and which Hughes v. W. & St. P. R. R., 27 Minn. 137 ; Gibson v. E. By., 63 N. Y. 449 ; DeForest v. Jewett, 88 N. Y. 264, 8 Am. & Eng. R. B. ( '.is. 495 ; Sweeney v. C. P. Ry., 87 Cal. 15, 8 Am. & Eng. R. R. Cos. 151 ; Naylor v. C. & N. W. By, 5.°> Wise. 661. » 12 Ohio St. 475. ' 101 N. Y. 520, 524. 344 RISKS TAKEN BY TRAIN HANDS. the master did not make known to him. 1 Upon this principle, train hands take the risk of injury from the negligent movement of other trains; 2 from the explo- sion of nitro-glycerine while being moved in or loaded upon cars; 3 from the danger of strain in handling- heavy freight; 4 from the derailment of their train by its collision with trespassing cattle on an unfenced line; 5 from being struck by engines or cars moving in a railway yard, without notice and unattended; 6 from accumulations of ice and snow on or near the track; 7 from the jolting of cars on a siding, by rea- son of worn rails being used in its construction; 8 from slipping on ashes dropped from the fire-box of an en- gine while coupling cars ; 9 from the jolting of freight cars in making a flying switch, while the injured ser- 1 Priestley v. Fowler, 3 M. & W. 1 ; Williams v. Clough, 3 H. & N. 258; Watling v. Oastler, I.. R. 6 Ex. 73 ; Griffiths v. L. & St. K. Docks Co., 12 Q. B. D. 493, 13 Id. 259 ; Seymour v. Maddox, 16 Q. B. 327, 71 E. C. L. ; Sykes v. Packer, 99 Penua. St. 405. 2 Randall v. B. & O. R. R, 109 U. S. 478 ; Slater v. Jewett, 84 N. Y. 61, 5 Am. & Eng. R. R. Cas. 515 ; McCosker v. L. I. R. R., 84 N. Y. 77, 5 Am. & Eng. R. R. Gas. 564. 3 Foley v. C. & N. W. Ry., 48 Mich. 622, 6 Am. & Eng. R. R. Caa. 161. * Walsh v. St. P. & D. R. R., 27 Minn. 367, 2 Am. & Eng. R. R. Caa. 114. 5 Sweeny v. C. P. R. R., 57 Cal. 15, 8 Am. & Eng. R. R. Cas. 151 ; Flem- ing v. St. P. & D. R. R., 27 Minn. 111. 6 Kelley v. C, M. & St. P. Ry., 53 Wise. 74, 5 Am. & Eng. R. R. Cas. 469 ; Hallihan v. II. & St. J. R. R., 71 Mo. 113, 2 Am. & Eng. R. R. Cas. 117 ; C & X. W. Ry. v. Donahue, 75 111. 106; T. & P. Ry. v. Harrington, 62 Tex. 597, '21 Am. & Eng. R. R. Cas. 571 ; Speed v. A. & P. R. R., 71 Mo. 303, 2 Am. & Eng. E. B. Cas. 77. In Berg v. C. M. & St. P. Ry., 50 Wise. 419, 2 Am. & Eng. R. R. Cas. 70, the railway was held liable, under a statute of Wisconsin, to a trackman who was injured while working in a railway yard, by the failure of the hands on a moving train to give him notice of its ap- proach. 7 Piquegno v. C & G. T. Ry., 52 Mich. 40, 12 Am. & Eng. R. R. Cas. 210 ; cf. Fifield v. X. K. R., 42 X. H. 225. 8 M. C. R. R. v. Austin, 40 Mich. 247. 9 Hughes*. W. & St. P. R. R., 27 Minn. 137. RISKS TAKEN BY TRAIN HANDS. 345 vant is standing on the top of the cars; 1 from being knocked oif their cars by a bridge when their duty re- quires them to ride on the top of a freight car ; 2 and from being knocked off their cars by the projecting awning of an elevator; 3 or by the projecting roof of a station. 4 Train hands also take the risks of injury from inequalities in the track and the defects of appliances, whose condition is known to them, and of which they have not complained; 5 and of their feet being caught in a frog at a switch ; 6 and of travelling to the repair shop with a patently defective car; 7 of falling through a railway bridge in process of being repaired while walking over it in the discharge of their duty. 8 Train hands also take the risks of defects in the cars, wheie the existence of those defects is not the result of negli- gence on the part of the railway, as, for instance, the unexpected breaking of a brake-staff; or the breaking 1 Yorell v. S. C. & P. Ry., 66 Iowa 346, 21 Am. & Eng. R. R. Cas. 589. 2 P. & C. Ry. v. Sentmayer, 92 Penna. St. 276, 5 Am. & Eng. R. R. Cas. 508 . Owen v. N. Y. C. R. R., 1 Lans. 108 ; Devitt v. P. R. R., 50 Mo. 302 ; B. & O. R. R. v. Strieker, 51 Md. 47 ; Rains v. St. L., I. M. & S. Ry., 71 Mo. 164, 8 Am. & Eng. R. R. Cas. 610 ; Wells v. B., C, R. & N. R. R., 56 Iowa 520, 2 Am. & Eng. R. R. Cas. 243; Baylor v. D., L. & W. Ry., 40 N. J. L. 23; Gibson v. M. Ry., 2 Ont. (Can.) 658 ; Clark v. R. & D. R. R. 78 Va. 709, 18 Am. & Eng. R. R. Cas. 78 ; sed contra, B. & O. & C. R. R. v. Rowan, 104 Ind. 88, 23 Am. & Eng. R. R. Cas. 390. 3 Clark v. St. P. & S. C. R. R., 28 Minn. 128, 2 Am. & Eng. R R. Cas. 240. * Gibson v. E. Ry., 63 N. Y. 449 ; sed. cf. W. Ry. v. Elliott, 98 111. 481, 4 Am. & Eng. R. R. Cas. 651. It would seem that the railway ought to bo held liable where the construction, collision with which does the injury, is under the control of the railway. 5 P. & R. R. R. v. Schertle, 97 Penna. St. 450 ; DeForest v. Jewett, 88 N. Y. 264, 8 Am. & Eng. R. R. Cas. 495. 8 L. S. & M. S. Ry. v. McCormick, 74 Ind. 540 ; Smith v. St. L., K. C. & N. Ry., 69 Mo. 32. 7 Flannagan v. C. & N. W. Ry., 45 Wise. 98, 50 Id. 462, 2 Am. & Eng. R. R. Cas. 150; C. & N. W. Ry. v. Ward, 61 111. 130; Watson v. II. & T.C. Ky., 58 Tex. 434, 11 Am. & Eng. R. R. Cas. 213. 8 Koontz v. C, R. I. & P. Ry., 65 Iowa 224, 18 Am. & Eng. R. R. Cas. 85. 9 Smith v. C, M. & St. P. Ry., 42 Wise. 520. 340 RISKS TAKEN BY TRAIN HANDS. of ;i ladder on a car from the shortness of a bolt fasten ing the slat; 1 or the breaking of the eye bolt of a brake chain from a latent defect. 2 Train hands also take the ordinary risks in coupling cars, 3 even though the car load project beyond the ends of the platforms of the car. 4 Train hands also take the risk of coupling defec- tive cars which have been marked as such and put aside, for the purpose of moving them to the repair shop, 5 and of shunting or switching a defective car in a railway yard, even though no express notice was given of the defective condition of the particular car; 6 but it has been held that they do not take the risk of negligence 1 Ballou v. C. & N. W. Ry., 54 Wise. 257, 5 Am. & Eng. R. R. Cas. 480 ; C. & A. R. R. v. Piatt, 89 111. 141 ; T. W. & W. Ry. v. Ingrahani, 77 Id. 309. 2 Painton v. N. C. Ry., 83 N. Y. 7, 5 Am. & Eng. R. R. Cas. 454. 8 Day v. T. C. S. & D. Ry., 42 Mich. 523, 2 Am. & Eng. R. R. Cas. 126 ; T. W. & W. R. R. v. Black, 88 111. 112 ; L. S. & M. S. Ry. v. McCormick, 74 Ind. 440 ; M. C. R. R. v. Smithson, 45 Mich. 212, 1 Am. & Eng. R. R. Cas. 101 ; Viets v. T., A., A. & G. T. Ry., 55 Mich. 120, 18 Am. & Eng. R. R. Cas. 11 ; M. P. Ry. v. Lyde, 57 Tex. 505, 11 Am. & Eng. R. R. Cas. 188 ; Skellenger v. C. & N. W. Ry., 61 Iowa 714, 12 Am. & Eng. R. R. Cas. 206 ; Hathaway v. M. C. R. R., 51 Mich. 253, 12 Am. & Eng. R. R. Cas. 249 ; C. & R. I. Ry. v. Clark, 108 111. 113, 15 Am. & Eng. R. R. Cas. 261 ; B., C, R. & N. R. R. v. Coates, 62 Iowa 487, 15 Am. & Eng. R. R. Cas. 265 ; Rodman v. M. C. R. R., 55 Mich. 57, 17 Am. & Eng. R. R. Cas. 521 ; Pease v. C. & N. W. Ry , 61 Wise. 163, 17 Am. & Eng. R. R. Cas. 527; Fowler v. C. & N. W. Ry., 61 Wise. 169, 17 Am. & Eng^ R. R. Cas. 536; Umback v. L. S. & M. S. Ry., 83 Ind. 191, 8 Am. & Eng. R. R. Cas. 98 ; Smith v. Potter, 46 Mich. 258, 2 Am. & Eng. R. R. Cas. 140; N. C. & St. L. Ry. v. Wheeler, 10 Lea (Tenn.) 741, 4 Am. & Eng. R. R. Cas. 633; H.& T. C. Ry. v. Myers, 55 Tex. 110, 8 Am. & Eng. R. R. Cas. 114 ; Batterson v. C. Sz G. T. Ry., 49 Mich. 184, 8 Am. & Eng. R. R. Cas. 123 ; L. R. & F. S. Ry. v. Townsend, 41 Ark. 382, 21 Am. & Eng. R. R. Cas. 619 ; A., T. & S.F. R. R. v. Wagner, 33 Kana. 660, 21 Am. & Eng. R. R. Cas. 637. * N. C Ry. v. Husson, 13 Weekly Notes of Cases (Penna.) 361, 12 Am. & Eng. R. R. Cas. 241 ; A., T. & S. F. Ry. v. Plunkett, 25 Kans. 188, 2 Am. & Eng. R. R. Cas. 127 ; Day v. T., C, S. & D. Ry., 42 Mich. 523, 2 Am. & Eng. R. R. Cas. 126 ; Hamilton v. D. M. V. Ry., 36 Iowa 31 ; cf. Brown v. A., T. & S. F. Ry., 31 Kans. 1, 15 Am. & Eng. R. R. Cas. 271. 5 Watson v. H. & T. C. R. R., 58 Tex. 434, 11 Am. & Eng. R. R. Cas. 213. 6 Yeaton v. B. & L. R. R., 135 Mass. 418, 15 Am. & Eng. E, R. Cas. 253; Fraker v. St. P., M. & M. Ry., 32 Minn. 54, 15 Am. & Eng. R. R. Cas. 256. RISKS TAKEN BY FIREMEN, ETC. 347 of car inspectors in a yard in failing to mark damaged cars, so as to give notice of the condition of such cars to those who may be called on to coup^ them. 1 317. Firemen, or stokers, take the risk of injury from "bucking" snow on the line, that is, from driving the engine at speed into a snow bank for the purpose of clearing the line of snow. 2 Station hands take the risk of injury from throwing mail bags into moving trains. 3 Car repairers, while working beneath cars in a railway yard take the risk of injury from the car being struck by another car, when they habitually do such work without asking that the car be protected by a flag ; 4 but in one case the railway was held liable to a servant in- jured while similarly engaged, the railway having con- ceded by its answer that under its regulations the car should have been protected by flags, 5 and in other simi- lar cases of injury the railway was held liable by reason of the failure of the foreman of the injured servant to take precautions for his safety by guarding the car. 6 318. Labourers on the line take the risk of injury from a defective condition of the roadbed when engaged to repair it ; thus, in R, 1ST. Y. & P. K. K. v. Brick, 7 a labourer engaged in the reconstruction of a dilapidated line, and while being carried over the line in a construc- tion train, was killed by the derailment of a train at a level crossing, caused by the freezing of mud which had been negligently permitted to fill up and remain in 1 Tierney v. M. & St. L. Ry., 33 Minn. 311, 21 Am. & Eng. R. R. Cas. 545. a Bryant v. B., C. R. & N. R. R, 66 Iowa 305, 21 Am. & Eng. R. R. Cas. 593. 3 Coolbroth v. M. C. R. R., 77 Me. 165, 21 Am. & Eng. R. R. Cas. 599. * O'Rorke v. U. P. Ry., Colo. , 18 Am. & Eng. R. R. Cas. 19; Penna. Co. v. Stoeike, 104 111. 201, 8 Am. & Eng. R. R. Cas. 523. 5 Luebke v. C, M. & St. P. Ry., 59 Wise. 127, 15 Am. & Eng. R. R. Cas. 183. 6 L. S. & M. S. Ry. v. Lavalley, 36 Ohio St. 221, 5 Am. & Eng. B. R. Cas. 549 ; Moore v. W., St. L. & P. Ry., 84 Mo. 481, 21 Am. & Eng. R. R. Cas. 509. 7 98 N, Y. 212, 21 Am. & Eng." R. R. Cas. 605. 348 RISKS TAKEN BY LABOURERS. the spaces between the rails and the planking of the crossing. Judgment on a verdict for the plaintiff was reversed in error, Miller, J., saying inter alia, "it may be assumed, we think, that the deceased in performing the service in which he was engaged and in travelling on the construction train, understood that he was not working upon a road which was finished and in good repair, but upon one which, having been long neglected and but little travelled and latterly only by construction trains, subjected him to greater risks and perils than would be incurred under ordinary circumstances. In entering the defendant's service he assumed the hazards incident to the same." On the other hand, in Madden v. M. & St. L. Ry., 1 the railway was held liable to a train hand on a gravel train engaged in resurfacing the roadbed, the train being derailed by the bad condition of the roadbed, Gilfillan, C. J., saying: "there is no differ- ence as to the duty of the master and the assumption of risk by the servant between an employment to make repairs and any other employment. In all cases the servant is held to take on himself the risks necessarily incident to the employment, unless, perhaps, they be latent and known to the master, but not known to nor by the use of proper diligence, discoverable by the ser- vant ; and in no case does he take on himself the risks that arise by reason of neglect on the part of the master, unless they be known to him, or by the use of proper diligence are discoverable to him. * * * The fact that the work in which the plaintiff was employed was that of repairing, or making preparations to repair, the track did not diminish its duty to furnish safe and suitable means and instruments to do his work. As it required him, i 1 that work, to use the old track it should have had it reasonably safe for the purpose." On this sub- 1 32 Minn. 303, 18 Am. & Eng. R. R. Cas. 63. BISKS OF SPECIAL SERVICE. 349 ject, the doctrine of the Brick case would seem to be sound. Labourers on the line also take the risk of in- jury from the derailment of their train in pushing through a snow bank ; x of a bank of earth caving in on them while digging; 2 of the negligent movement of trains upon the line ; 3 of being struck by a passing train in a tunnel, while engaged in repairing the tunnel, 4 and of being injured by defects in tools. 5 Well-diggers take the risk of injury from the caving in of a well in pro- cess of excavation. 6 An ostler in a railway's stable takes the risk of being kicked by a vicious horse whose character is known to him. 7 319. There are authorities for the proposition that servants do not impliedly undertake to bear the risk of injury in any special service, which does not fall within their duties as defined by their contract of service, but which they are ordered to perform by a superior officer, as, for instance, where one who had been engaged as brakeman on a passenger train, was injured while coupling freight cars in a railway yard under the orders of the superintendent of a division of the line, 8 or where a labourer in a railway yard who, having no experience in coupling cars, was ordered by his foreman to perform that service, and while so doing was injured 1 Howland v. M., L. S. & W. Ry., 54 Wise. 226, 5 Am. & Eng. R. R. Cas. 578; M. & St. L. Ry. v. Morse, 30 Minn. 465, 11 Am. & Eng. R. R. Cas. 168. * Naylor v. C. & N. W. Ry., 53 Wise. 661, 5 Am. & Eng. R. R. Cas. 460; Simmons v. C. & T. R. R., 110 111. 340, 18 Am. & Eng. R. R. Cas. 50; Morey v. L. V. Coal Co , 55 Iowa G71 ; Rasmusson v. C, R. I. & P. Ry., 65 Iowa 236, 18 Am. & Eng. R. R. Cas. 54. s P. R. R. v. Wachter,60 Md. 395, 15 Am. & Eng. R. R. Cas. 187 ; McGrath v. N. Y. & N. E. R. R., Mass. , 18 Am. & Eng. R. R. Cas. 5 ; I. & G. N. R. R. v. Hester, 64 Tex. 401, 21 Am. & Eng. R. R. Cas. 535 ; P., C. & St. L.R. R. v. Leech, 41 Ohio St. 388, 21 Am. & Eng. R. R. Cas. 541, note. 4 Woodlt-v r. M. D. Ry., 2 Ex. D. 384. 5 L. R. & F. S. Ry. v. Duffey, 35 Ark. 602, 1 Am. & Eng. R. R. Cas. 637. 6 G., H. & S. A. R. R. v. Lempe, 59 Tex. 19, 11 Am. & Eng. R. R. Cas. 201. T G. & C. St. Ry. v. Bresmer, 94 Penna. St. 103. • Jones v. L. S. & M. S. Rv.. 49 Mich. 573, 8 Am. & Eng. R. R. Cas. 221. 350 fellow-servant's negligence. by the negligence of an engine-driver ;* nor do servants take the risks of negligence on the part of another rail- way, upon whose line or premises they are compelled to go in the performance of their duty to the railway whom they serve, nor the risks of negligence on the part of another railway which exercises either statutory or contractual running powers over the line of the com- pany they serve. 320. Railway servants also impliedly assume the risk of injury from negligence on the part of their fel- low-servants. This rule was not enunciated in Priestley v. Fowler, 2 but it is the necessary result of the decision in that case which rests the liability of the master upon his personal negligence, for a master cannot be said to be personally negligent if an injury is caused to a ser- vant by the negligence of a fellow-servant, in whose original selection and subsequent retention in his post the master has exercised due care. The rule was first distinctly enunciated in South Carolina in 1841, in Murray v. S. C. R. R., 3 where a fireman having been injured by the negligence of an engine-driver, the rail- way was held not to be liable, for the reason that the engine-driver no more represented the railway than did the fireman, and each was liable to the railway for himself and not for his fellow, and the railway was not liable to either for the failure of the other. The next case is Farwell v. B. & W. R. R., 4 in which judg- ment was delivered in 1842 by Shaw, C. J. An engine- driver having been injured by the negligence of a switch-tender, the railway was held not to be liable, and the great Chief Justice of Massachusetts rested the 1 Lalor v. C, B. & Q. R. R., 52 111. 401 ; see also C. & G. E. R. R. v. Harney, 28 Ind. 28 ; U. P. R. R. v. Fort, 17 Wall. 553 ; CAN. W. Ry. v. Bayfield, 37 Mich. 205; Miller v. U. P. Ry., 17 Fed. Rep. 67. 1 3 M. & W. 1. 8 1 McMullan 385. « 4 Mete. 49, 1 Redf. Am. Ry. Cas. 395. fellow-servant's negligence. 351 exemption of the railway from liability to the plaintiff upon the ground that the liability of a master for the negligence of his servant, acting in the course of his employment, and within the scope of his authority, and causing injury to a stranger, is dependent upon the want of privity between the master and the stranger, but that the liability of a master to a servant, for injuries caused by the negligence of a fellow-servant, must, if it exist, be maintained upon the ground of an implied contract upon the part of the master to indem- nify every servant against such injuries, and that the want of adjudged cases illustrating the applications of such an implied contract, is a denial of its existence. The Chief Justice also stated, with force, certain general considerations of public policy, which were very similar to those put forth by Abinger, C. B., in Priestley v. Fowler, 1 but which I neither quote nor rely upon, be- cause it seems to me that judicial enunciations of legal principles should have a more stable foundation than considerations of public policy, which are not always capable of exact definition, and which, under changed circumstances and conditions, may be of questionable applicability. The rule was first applied in England in Hutchinson v. Y., N. & B. By., 2 decided in 1850. In that case an administratrix having brought suit under Lord Campbell's Act, averred in her declaration, that her decedent, a servant upon a train of the de- fendant, was killed in a collision by the negligence of the defendant, etc. The defendant pleaded specially that the collision was solely caused by the negligence of the defendant's servants, who were fit and competent persons to have the government and guidance of the colliding trains, etc. On demurrer to this plea, judg- ment was entered for the defendant, Alderson, B., say- 1 3 M. & W. 1. "5 Ex. 343. 352 fellow-sekv ant's negligence. ing, " the principle upon which a master is, in general, liable to answer for accidents resulting from the negli- gence or unskilfulness of his servant, is that the act of his servant is, in truth, his own act. If the master is himself driving his carriage, and from want of skill causes injury to a passerby, he is, of course, responsible for that want of skill. If, instead of driving the car- riage with his own hands, he employs his servant to drive it, the servant is but an instrument set in motion by the master. It was the master's will that the ser- vant should drive, and whatever the servant does in order to give effect to his master's will, may be treated by others as the act of the master, qui facit per alium, facit per se. So far there is no difficulty. Equally clear is it, that though a stranger may treat the act of the servant as the act of his master, yet, the servant him- self, by whose negligence or want of skill the accident has occurred, cannot, and, therefore, he cannot defend himself against the claim of a third person ; nor, if by his unskilfulness he is himself injured, can he claim damages from his master upon an allegation that his own negligence was, in point of law, the negligence of his master. The grounds for these distinctions are so obvious as to need no illustrations. The difficulty is as to the principle applicable to the case of several ser- vants employed by the same master, and injury result- ing to one of them from the negligence of another. In such a case, however, we are of opinion that the master is not, in general, responsible, when he has selected persons of competent care and skill. Put the case of a master employing A. and B., two of his servants, to drive his cattle to market. It is admitted that, if by the unskilfulness of A., a stranger is injured, the master is responsible. Not so, if A., by his unskilfulness, hurts himself; he cannot treat that as the want of skill fellow-seevant's negligence. 353 of his master. Suppose then, that by the unskilfulness of A., B., the other servant, is injured while they are jointly engaged in the same service, there we think B. has no claim against the master. They are both en- gaged in a common service, the duties of which impose a certain risk on each of them ; and, in case of negli- gence on the part of the other, the party injured knows that the negligence is that of his fellow-servant, and not of his master. He knew, when he engaged in the service, that he was exposed to the risk of injury, not only from his own want of skill or care, but also from the want of it on the part of his fellow-servant ; and he must be supposed to have contracted on the terms, that as between himself and his master, he would run this risk." In Bartonshill Coal Co. v. Reid, 1 where it was held that a mine-owner was not liable to a miner in his service for injuries resulting from the negligence of another servant, whose duty it was to operate the engine, by whose power the miners were brought up from the pit, Lord Cranworth said : " when the work- man contracts to do work of any particular sort, he knows, or ought to know, to what risks he is exposing himself; he knows, if such be the nature of the risk, that want of care on the part of a fellow-servant may be injurious or fatal to him, and that against such want of care his employer cannot by possibility protect him. If such want of care should occur, and evil is the result, he cannot say that he does not know whether the master or the servant was to blame. He knows that the blame was wholly that of the servant He cannot say the master need not have engaged in the work at all, for lie was a party to its being undertaken. Principle, there- fore, seems to me opposed to the doctrine that the responsibility of the master for the ill consequences of his 1 3 Macq. II. L. 282. 23 354 fellow-servant's negligence. servant's carelessness, is applicable to the demand made by a fellow-workman in respect of evil resulting from the carelessness of a fellow-workman when engaged in a com- mon work." In Wilson v. Merry, 1 where a mine-owner was held not to be liable for the death of a servant caused by the negligence of a fellow-servant in erecting a scaf- fold which obstructed the circulation of air in the mine, Lord Chancellor Cairns, after quoting from Lord Cran- worth's judgment in Bartonshill Coal Co. v. Reid, said : " I would only add to this statement of the law, that I do not think the liability or non-liability of the master to his workmen can depend upon the question whether the author of the accident is not or is, in any technical sense, the fellow- workman or collaborates of the suf- ferer. In the majority of cases in which accidents have occurred, the negligence has, no doubt, been the negli- gence of a fellow-workman ; but the case of the fellow- workman appears to me to be an example of the rule, and not the rule itself; the rule, as I think, must stand upon higher and broader grounds. As is said by a distinguished jurist : Exempla non restringunt regular//, sed loquuntur de casibus crebrioribus. 2 The master is not, and cannot be, liable to his servant unless there be negligence on the part of the master, in that in which he, the master, has contracted or undertaken with his servant to do. The master has not contracted or under- taken to execute, in person, the work connected with his business. The result of an obligation on the master personally to execute the work connected with his business, in place of being beneficial, might be disas- trous, to his servants, for the master might be incompe- tent personally to perform his work. At all events, a servant may choose for himself between serving a master who does, and a master who does not, attend in 1 L.' E. 1 S. C. & D. 326. J Donellus de Jure Civ. L. 9, c. 2, n. fellow-servant's negligence. 3-55 person to his business. But what the master is, in my opinion, bound to his servant to do, in the event of his not personally superintending and directing the work, is to select proper and competent persons to do so, and to furnish them with adequate materials and resources for the work. When he has done this he has, in my opinion, done all that he is bound to do. And if the persons selected are guilty of negligence, this is not the negligence of the master." In Randall v. B. & O. R. R., 1 the rule is distinctly recognized by the Supreme Court of the United States. There are, however, some cases in which the doctrine is denied ; 2 and in L. & N. Ry. v. Collins, 3 the railway was held liable for injuries caused to a labourer by the negligence of an engine- driver in putting the engine in motion, while the labourer was, as the engine-driver knew, engaged in making some repairs under the engine, the ground of decision being that the doctrine of agency rendered the corporation liable for the negligence of its servants causing injury to other servants as well as to strangers. The unsoundness of this reasoning has been sufficiently shown by the quotations which have been made from the judgments in those cases which maintain the op- posing view upon this question. 321. The general rule, therefore, is that servants take the risk of the negligence of their fellow-servants and the master, if he has not been negligent in the selection or retention of the nesdiprent fellow-servant, is not im- pliedly liable to indemnify them for any injury result- ing from the negligence of that fellow-servant. 4 1 109 u. S. 478. 3 Chamberlain v. M. & M. R. R., 11 Wise. 238; L. & N. Ry. v. Collins, 2 Duvall 114; McLeod v. Ginther, 80 Ky. 399, 8 Am. & Eng. K. B. Cm. L62 ; Haynes v. E., T. V. & G. R. R., 3 Cold. (Tenn.) 222. 3 2 Duvall 114. * Hutchinson v. Y., N. & B. Ry., 5 Ex. 343; Wigmore v. Jay. 1.1. 864 ; Bar- ooG COMMON EMPLOYMENT. The common object of railway service being that of fitting the line for traffic, and of carrying on the traffic, all who are employed in the accomplishment of that object, and whose negligence may be the cause of injury to one another, are to be deemed jcllow-servants. 322. At one time in England some of the judges manifested an inclination to restrict within narrow limits the doctrine of the master's immunity from re- sponsibility to a servant for injuries caused by the neg- ligence of a fellow-servant ; thus, in Holmes v. Clarke, 1 Pollock, C. B., said : " it would be quite consistent with the authorities if we were to hold that a footman might recover against his master for injury arising from the neglect of the coachman or groom, the services being different," and in Bartonshill Coal Co. v. McGuire, 2 Chelmsford, C, intimated thai a carpenter in the rail- way service, engaged in repairing a railway carriage, could not be considered a fellow-servant of the engine- tonshill Coal Co. v. Reid, 3 Macq. H. L. 266 ; Vose v. L. Y. Ry., 2 H. & N. 728; Wigget v. Fox, 11 Ex. 832; Waller v. S. E. Ry., 2 H. & C. 102; Hall v. Johnson, 3 Id. 589; Searle v. Lindsay, 11 C. B. N. S. 429, 103 E. C. L. ; Lovegrove v. L. B. & S. C. Ry., 16 C. B. N. S. 669, 111 E. C. L. ; Farwell v. B. & W. R. R., 4 Mete. 49 ; Hayes v. Western R. R., 3 Cush. 270 ; Murray v. S. C. R. R., 1 McMullan 385 ; Russell v. H. R. R. R., 17 N. Y. 13 1 ; Lovell v. Howell, 1 C. P. D. 161 ; Charles v. Taylor, 3 Id. 492 ; Ryan v. C. V. R. R., 23 Penna. St. 110; Frazier v. P. R. R., 38 Id. 104; Gilman v. E. R. R., 10 Allen 233 ; Hall v. Johnson, 34 L. J. Ex. 222 ; Morgan v. V. of N. Ry., L. R. 1 Q. B. 149 ; Gillshannon r. S. B. R. R., 10 Cush. 228 ; Coon v. S. R. R., 5 N.Y. 492; Boldt v. N. Y. C. R. R., 18 Id. 432; Wright v. N. Y. C. R. R., 25 Id. 562; Honor v. Albrighton, 93 Penna. St. 475; Armour v. Hahn, 111 U. S. 313; Caldwell v. Brown, 53 Penna. St. 453 ; Allen v. New Gas Co., 1 Ex. D. 251 ; Hand v. V. & C. R. R-, 32 Vt. 473; Randall v. B. & O. R. R., 109 U. S. 478, 15 Am. & Eng. R. R. Cas. 243; Doughty v. L. D. Co., 76 Me. 143; K. P. Ry. v. Salmon, 11 Kans. 83 ; Brabbitts v. C & N. W. Ry., 38 Wise. 289 ; M. C. R. R. v. Dolan, 32 Mich 510 ; Robinson v. H. & T. C. Ry., 46 Tex. 540 ; T. W. & W. Ry. v. Durkin, 76 111. 395 ; Day v. T. C. S. & D. Ry., 42 Mich. 523, 2 Am. & Eng. R. R. Cas. 126; Whaalen v. M. R. & L. E. R. R., 8 Ohio St. 249 ; Hunt v. C. & N. W. Ry., 26 Iowa 363 ; Carle v. B. & P. C. R. R., 43 Me. 269; P., F. W. & C. R. R. v. Devinney, 7 Ohio St. 197. 1 6 II. & N. 357 ' 3 Macq. II. L. 311. COMMON EMPLOYMENT. 357 driver and the switch-tender, 1 and he said: 2 "where servants are engaged in different departments of duty, an injury committed by one servant upon the other by carelessness or negligence in the course of his peculiar work is not within the exception, and the master's lia- bility attaches in that case in the same manner as if the servant stood in no relation to him," and in the same case, 3 Lord Brougham said that fellow-servants are "men in the same common employment and engaged in the same common work under that common employ- ment." Later cases in England have, however, given a much wider range to the scope of a common employ- ment. In Hutchinson v. Y., N. & B. By., 4 a guard, or train hand, was held to be a fellow-servant with not only the engine-driver, guards, and hands on his train, but also with the servants performing the like duties on a train which came into collision with his train. Alderson, B., in delivering judgment for the defendant, said on this point : " the principle is, that a servant, when he engages to serve a master, undertakes, as be- tween him and his master, to run all the ordinary risks of the service, and this includes the risk of negligence on the part of a fellow-servant, whenever he is acting in discharge of his duty as servant of him who is the common master of both. The death of Hutchinson appears on the pleadings to have happened while he was acting in the discharge of his duties to the defend- ant as his master, and to have been the result of care- lessness on the part of one or more other servant or servants of the same master while engaged in their service; and whether the death resulted from the mis- management of the one train, or of the other, or of both, does not affect the principle ; in any case, it arose 1 See McNaughton v. 0. Ky., 19 Court of Sess. < 'a. '-'71. >p, 307. "P. 313. 4 6 Exch. 343. C58 COMMON EMPLOYMENT. from carelessness or want of skill, the risk of which the deceased had, as between himself and the defendant, agreed to run." So in Waller v. S. E. By., 1 wherein it was held that a guard on a train, or train hand, was a fellow-servant with the "gauger of plate layers," or foreman of track repairs, by whose negligence the in- jury was occasioned, Pollock, C. B., said : " I think that the superintending the trains on their journey, and the taking care that the rails on which the carriages run are firmly and securely fastened and bolted con- stitute one common object, viz. : that the passengers shall be conveyed in carriages which are safe, and on rails which are free from danger. Where, indeed, two trains belonging to the same company are travelling on different lines of rail which, at a certain point, intersect each other or join a principal line, and, in consequence of the negligence of the driver of one of the trains, a collision ensues, by which the driver of the other train is injured, I own there seems to me less of what may be called an employment in one common object. No doubt the common object of the two servants is the driving their respective trains to their place of destina- tion ; but each of them has in particular a different object, one of them has one train under his control, the other another train. But in this case the common object of both servants was the safe conveyance of the pas- sengers in that particular train, it being the duty of the one to superintend the carriages of the other, and to take care that the rails were in such a condition that the journey might be safely performed. Viewing this case with reference to the observation of Lord Cran- worth in Bartonshill Coal Co. v. Beid, that when a workman contracts to do work of any particular sort, 1 2 H. & c. 102. COMMON EMPLOYMENT. 359 lie knows or ought to know to what risks he is exposing himself, there can be no doubt that the guard of a rail- way train must anticipate, among other probable sources of danger on the journey, the neglect of a servant to oil the wheels of the carriages, the neglect of another to adjust the points, the neglect of another to take care that the rails are safely and securely fastened and bolted." In Farwell v. B. & W. R. R., 1 Shaw, C. J., said : " it was strongly pressed in the argument, that although this might be so where two or more ser- vants are employed in the same department of duty, where each can exert some influence over the conduct of the other, and thus to some extent provide for his own security, yet that it could not apply where two or more are employed in different departments of duty at a distance from each other, and where one can in no degree control or influence the conduct of another. But we think this is founded upon a sup- posed distinction, on which it would be extremely difficult to establish a practical rule. When the object to be accomplished is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish what constitutes one department and what a distinct department of duty. It would vary with the circumstances, of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how Dear or how distant must they be to be in the same or different departments. * * * Besides, it appears to us, that the argument rests upon an assumed principle of responsi- bility which does not exist. The master, in the case supposed, is not exempt from liability, because the Ber- 360 COMMON EMPLOYMENT. vant has better means of providing for his safety when he is employed in immediate connection with those from whose negligence he might suffer ; but because the im- plied contract of the master does not extend to indem- nify the servant against the negligence of any one but himself ; and he is not liable in tort, as for the negli- gence of his servant, because the person suffering does not stand towards him in the relation of a servant, but is one whose rights are regulated by contract express or implied. The exemption of the master, therefore, from liability for the negligence of a fellow-servant does not depend exclusively upon the consideration that the servant has better means to provide for his own safety, but upon other grounds. Hence the separation of the employment into different departments cannot create that liability when it does not arise from express or implied contract, or from a responsibility created by law to third persons and strangers for the negligence of a servant." In Morgan v. V. of N. Ky., 1 the plain- tiff, a carpenter in the railway service, while working on a scaffolding in the railway yard, was thrown down and injured by the negligence of some porters in the railway service in carelessly shifting an engine on a turn-table. The judge at the trial having nonsuited the plaintiff, the Q. B. discharged a rule to enter the ver- dict for the plaintiff. Blackburn, J., after referring to the general rule of a master's exemption from liability for injuries done to a servant by the negligence of a fellow-servant, said : " I quite agree that it is necessary that the employment must be common in this sense, that the safety of the one servant must in the ordinary and natural course of things depend on the care and skill of the others. This includes almost every, if not 1 5 B. & S. 570, 117 E. C. L., L. R. 1 Q. B. 149. COMMON EMPLOYMENT. 3G1 every, case in which the servants are employed to do joint work, but I do not think it is limited to such cases. There are many cases where the immediate object on which the one servant is employed is very dissimilar from that on which the other is employed, and yet the risk of injury from the negligence of the one is so much a natural and necessary consequence of the employment which the other accepts, that it must be included in the risks which are to be considered in his wages. I think that, whenever the employment is such as necessarily to bring the person accepting it into contact with the traffic of the line of railway, risk of injury from the carelessness of those managing that traffic is one of the risks necessarily and naturally in- cident to such an employment, and within the rule." The Queen's Bench having entered judgment against the plaintiff, the Exchequer Chamber affirmed that judgment, Erie, C. J., saying: "the plaintiff and the porters were engaged in one common employment, and were doing work for the common object of their mas- ters, viz., fitting the line for the traffic ;" and Pollock, C. B., adding : " it appears to me that Ave should be letting in a flood of litigation were we to decide the present case in favour of the plaintiff. For, if a car- penter's employment is to be distinguished from that of the porters employed by the same company, it will be sought to split up the employes in every large estab- lishment into different departments of service, although the common object of their employment, however dif- ferent, is but the furtherance of the business of the master; yet it might be said with truth that no two had a common immediate object. This shows that we must not over-refine, but look at the common objecl and not at the common immediate object." In Slater v. 3G2 COMMON EMPLOYMENT. Jewett, 1 wherein the facts were identical with those in C, M. & St. P. Ry. v. Ross, 2 with the exception that the person injured was a fireman, and the persons whose negligence caused the injury were a telegraph operator and the conductor of the train which came into collision with that on which the injured fireman was serving. Judgment was entered for the defendant, and the grounds of the judgment, as stated by Folger, C. J., are that "each of these agents" [the telegraph operator and the conductor], "in doing their ordinary work for the defendant, were fellow-servants of the intestate in the same common employment. The conductor was engaged in the particular work in which the intestate was, that of moving trains. The telegrapher was en- gaged in a work closely connected therewith, that of receiving and giving information of the whereabouts of trains, and communicating orders to those controlling them for stopping or going on. This was a branch of the general business of the defendant essential to the smooth and successful movement of the whole, that branch of it in which the intestate was engaged as much as any other. * * * It cannot be contended that there was anything required of the conductor that raised him out of his relation to the intestate of a fellow-servant. The act required of the conductor at the particular time was to receive an order from an authorized source of command, and in a prescribed mode to acknowledge the receipt of it, and then to follow the direction. This was service merely. It is contended that the duty of the telegrapher at the time and the act required of him were those that the defendant was bound to perform as master, and that the negligent performance by the operator was the negligence of the master. The argii- 1 85 N. Y. 61, 5 Am. & Eng. U. K. Cas. 515. a 112 U. S. 377. TEST OF COMMON EMPLOYMENT. 363 ment to sustain this position consists, in part, in an effort to show that the duties of the operator were in no respect like to those of the intestate. They were not like, but they tended to the same end, that of the speedy, efficient, and successful carriage of passengers and freight over the railway. There are many kinds of servants of a great railway company. Their duties are not in all cases the same, nor always alike, yet they are all done to bring one result, and it is their conjoint, simultaneous, and harmonious performance that does effect the finality, sought through the whole complex organism. If it be so that this operator sometimes re- ceived and sent messages that had naught to do there- with, still, on this occasion, the act required of him had direct connection with the acts of those engaged in moving the two trains. The position, that the operator was hired and discharged by one superior agent and the intestate by another, and that, therefore, they were not fellow-servants, is not sound. The general authority to hire and to turn away was in the defendant. It did radiate from him through different chiefs of department in his general work. His, however, was the ultimate power. The heads of bureaus were not independent contractors doing a branch of his work on their own responsibility, and free from his interference with their subordinates. He had the right to step into their spheres of duty, and act for himself." 1 323. It, therefore, may be laid down as the result of the authorities, that the common object of railway ser- vice being that of fitting the line for traffic, and of carry- ing on the traffic, all servants who are working for the 1 See also Holden v. F. R. R., 129 Mass. 268; Farwcll v. B. & W. R. R, i Mete. 49; Slater v. Jewett, 85 N. Y. 61, 5 Am. & Eng. R. R. Cm. 615; Waller v. S. E. Ry., 2 H. & 0. 102; N. O., J. & N. K. R. v. Hughe 19 Mitt. 258 ; Valtez v. O. & M. Ry., 85 111. 500 ; M. & M. R. R. v. Smith, 69 Ala. 2 US : McGowan v. St. L. & I. M. R. R-, 61 Mo. 528. 364 TEST OF COMMON EMPLOYMENT. accomplishment of that common object are fellow- servants within the rule. A very simple practical test is, as suggested in Valtez v. O. & M. Ry., 1 to hold those to be fellow-servants whose negligence is likely to inflict injury on one another. Under this rule railway servants take the risk of injury from the negligence of their fellow-servants, while those fellow-servants are tempo- rarily discharging the duties of stations other than their regular ones. This rule prevents a recovery by train hands if injured by the negligence of a fireman while acting as an engine-driver, 2 or of a conductor while act- ing as an engine-driver. 3 It is held in some Illinois cases that the test of the existence of the relation of fellow-servants is, their habitual consociation and direct co-operation in the performance of a common work, so that they may influence each other to the exercise of care, and that the existence of such a relation in any case is a question of fact for the jury ; 4 thus, in I. & St. L. Ey. v. Morganstern, 5 where the jury found that the plaintiff's decedent, an inspector of rolling stock in the defendant's service, had been killed by the negligence of the defendant's baggage-master, and also that the deceased and the baggage-master were hot fellow- servants, judgment for the plaintiff on the verdict was affirmed in error, Craig, J., saying: " the definition of fellow-servant may be a question of law, but it is always a question of fact to be determined from the evidence 1 85 111. 500. 2 Greenwald v. M., H. & O. E. E., 49 Mich. 197, 7 Am. & Eng. E. E. Cas. 133. 3 Eodraan v. M. C. Ey., 55 Mich. 57, 18 Am. & Eng. E. E. Cas. 521. * C. & N. W. Ey. v. Miranda, 108 111. 576, 18 Am. & Eng. E. E. Cas. 564; W. Ey. v. Elliott, 98 111. 4S1, 4 Am. & Eng. E. E, Cas. 651 ; Penn. Co. v. Conlan, 101 111. 93, 6 Am. & Eng. E. E. Cas. 243 ; C. & A. E. E. v. Bonifield, 104 HI. 223, 8 Am. & Eng. E. E. Cas. 493 ; I. & St. L. Ey. v. Morganstern, 106 ILL 216, 12 Am. & Eng. E. E. Cas. 228. 4 106 111. 216, 12 Am. & Eng. E. E. Cas. 228. THE ILLINOIS RULE. 365 whether a given case falls within that definition." But in the later case of Abend v. T. H. & I. Ry., 1 the rule as generally held is asserted. In this case a foreman of wreckers, while being carried on a wrecking train to the scene of a wreck, voluntarily seated himself in the engine cab and was killed in a collision between that train and another train, and Mulkey, J., said: "the evidence shows that a wrecking force is always made up in the hurry of the moment out of the employes and servants of the company who happen to be within con- venient reach, without regard to the particular line of service in which they are employed. The removing of obstructions from the tracks in case of a collision is, as shown by the proofs in this case, a distinct branch of service, to which all the labouring force of the company are liable to be called without any reference to their ordinary calling or duties, and when a force thus made up goes aboard the wrecking train and starts to the scene of disaster, they are all, including conductor, en- gineer, foreman and brakeman, put as much in a com- mon branch of service while on the way as they are after their arrival and the work of clearing the track has commenced. It is an error to suppose that a force of men cannot be engaged in a common cause unless all are continuously working at the same time, and engaged in doing precisely the same kind of work. It is suffi- cient if all are actually employed by the same master, and that the work of each, whatever it may be, has for its immediate object a common end or purpose, sought to be accomplished by the united effort of all." 324. In the application of the rule of a common em- ployment to the different departments and grades of railway service, the cases are very numerous, and it must be added, far from consistent. It has been held 1 111 111. 202, 17 Am. & Eng. R. R. Cas. G'4. 366 CASES OF COMMON EMPLOYMENT. that the following classes of servants are fellow-servants, the injured servant being named first, and the servant whose negligence has caused the injury being named last. Engine-driver and switch-tender or pointsman; 1 engine-driver and road-master, acting as switch-tender or pointsman; 2 engine-driver and train dispatcher; 3 engine-driver and station agent acting as yard master; 4 engine-driver and yard master; 5 engine-driver and master mechanic in repair shop ; 6 fireman, or stoker, and his engine-driver; 7 fireman, or stoker, and engine- driver of another engine; 8 fireman, or stoker, and con- ductor of another train, and telegraph operator ; 9 fire- man, or stoker, and switch -tender or pointsman ; 10 fireman, or stoker, and master mechanic in repair shop; 11 train hands, or guards, and conductor acting as engine- driver; 12 train hands, or guards, and train hands, or guards, of the same train ; 13 train hands, or guards, and foreman of labourers on line; 14 train hands, or guards, and conductor of train; 15 train hands, or guards, and 1 Farwell v. B. & W. K. K., 4 Mete. 49. I Walker v. B. & M. E. E., Miller v. Same, 128 Mass. 8, 1 Am. & Eng. E. E. Cas. 141. 3 C, St. L. & N. O. Ey. v. Doyle, GO Miss. 977, 8 Am. & Eng. E. E. Cas. 171 ; Blessing v. St. L., K. C. & N. Ey., 77 Mo. 410, 15 Am. & Eng. E. E. Cas. 298. * Brown v. M. & St. L. Ey., 31 Minn. 553, 15 Am. & Eng. E. E. Cas. 333. 5 E. T. V. & G. E. E. v. Gurley, 12 Lea (Tenn.) 46, 17 Am. & Eng. E. E. Cas. 568. 6 Hard v. C. Ey., 32 Vt. 473. 7 Murray v. S. C. E. E., 1 McMullan 385 ; Henry v. L. S. & M. S. Ey., 49 Mich. 495, 8 Am. & Eng. E. E. Cas- 110. 8 L. & N. E. E. v. Eobinson, 4 Bush (Ky.) 507. 9 Slater v. Jewett, 85 N. Y. 61, 5 Am. & Eng. E. E. Cas. 515. 10 King v. B. & W. E. E., 9 Cush. 112. II C. & I. C. E. E. v. Arnold, 31 Ind. 174. 12 Eodman v. M. C. E. E., 55 Mich. 57, 17 Am. & Eng. E. E. Cas. 521. 13 Hutchinson v. Y., N. & B. Ey., 5 Exch. 343. 11 Waller v. S. E. Ey., 2 H. & C, 102. 15 Frazier v. P. E. E., 38 Penna. St. 104 ; Cassidy v. M. C. E. E., 76 Me. 488, 17 Am. & Eng. E. R. Cas. 519 ; Heine v. C. & N. W. Ey., 58 Wise. 528 ; Pease v. Same, 61 Wise. 163, 17 Am. & Eng. E.E. Cas. 527. CASES OF COMMON EMPLOYMENT. 367 engine-driver of another train j 1 train hands, or guards, and fireman, or stoker, of the engine of their train; 2 train hands, or guards, and engine-driver of their train; 3 train hands, or guards, and train hands, or guards, of another train; 4 train hands, or guards, and labourers on line; 5 train hands, or guards, and inspector of car repairs ; 6 train hands, or guards, and fireman, or stoker; 7 train hands, or guards, and train dispatcher; 8 train hands, or guards, and yard master; 9 train hands, or guards, and switch-tender; 10 train hands, or guards, and yardmen who make up trains; 11 conductor and baggage- master of train ; 12 switch-tender, or pointsman, and in- spector of car repairs ; 13 labourers and foreman of track layers; 14 labourers and engine-driver ; 15 labourers and 1 Kandall v. B. & O. K. R, 109 U. S. 478, 15 Am. & Eng. R. R. Cas. 243. 2 Greenwald v. M. H. & O. R. R., 49 Mich. 197, 8 Am. & Eng. R. R. Cas. 133. 8 P., C. & St. L. Ry. v. Ranney, 37 Ohio St. 665, 5 Am. & Eng. R. R. Cas. 533 ; P., F. W. & C. Ry. v. Lewis, 33 Id. 196 ; H. & T. C. R. R. v. Willie, 53 Tex. 318 ; Summerhays v. K. P. Ry., 2 Colo. 484 ; N., C. & St. L. Ry. v Wheless, 10 Lea (Tenn.) 74; 4 Am. & Eng. R. R. Cas. 633, 15 Id. 315 ; Smith v. M. & L. R. R, 18 Fed. Rep. 304 ; I. C. R. R. v. Keen, 72 111. 512 ; Sherman v. R. & S. R. R., 17 N. Y. 153 ; Wilson v. M. & P. Ry., IS Ind. 226. * Bull v. M. & M. Ry., 67 Ala. 206. 5 Holden v. F. R. R., 129 Mass. 268, 2 Am. & Eng. R. R. Cas. 94. 6 Smith v. Potter, 46 Mich. 258, 2 Am. & Eng. R. R. Cas. 140 ; C. & X. R R. v. Webb, 12 Ohio St. 475; L. M. R. R. v. Fitzpatrick, 42 Ohio St. 318, 17 Am. & Eng. R. R. Cas. 578; Mackin v. B. & A. R. R., 135 Mass. 201, 1", Am. & Eng. R. R. Cas. 196 ; N., C. & St. L. Ry. v. Foster, Tenn. , 11 Am. & Eng. R. R. Cas. 180. T Greenwald v. M., H. & O. R. R., 49 Mich. 197, 8 Am. & Eng. R. R. Cas. 133. 8 Robertson v. T. H. & I. R. R., 78 Ind. 77, 8 Am. & Eng. R. R. Cas. 175. 9 Rains v. St. L., I. M. & S. Ry., 71 Mo. 164. 10 Slattery v. T. & W. Ry., 23 Ind. 81. 11 Whitman v. W. & M. Ry., 58 Wise. 408, 12 Am. & En^. R. R. Cas. 214. " C. C. R. R. v. Martin, 7 Colo., 17 Am. & Eng. R. R. I as. 592. " Gibson v. N. C. Ry., 22 Hun 289. " Lovegrove v. L , B. & S. C. Ry., 16 C. B. N. S. 669, 111 E. C. L. 15 Ryan v. C. V. R. R., 23 Penna. St., 384 ; Kumler v. .1. I!. B., 33 Ohio St. 150; Fitzpatrick v. N. A. & S. R. R., 7 Ind. 436; O. & M. Ry. v. Tindall, r. Ind. 366; C. & A. R. R. r. Keefe, 47 111. 108; Capper v. L. E. & St. L. R. R., 3G8 CASES OF COMMON EMPLOYMENT. fireman, or stoker, of engine; 1 labourers ant] road master; 2 labourer and section foreman ; 3 labourer and engine-driver of steam shovel; 4 assistant yard master and yard master; 5 yard master and general traffic manager of the line; 6 yard hand and foreman of yard hands; 7 night watchmen of tracks in yard and yard hands ; 8 foreman of a wrecking crew and engine-drivers of colliding trains; 9 conductor of a construction train and train hands of a passenger train on which he was jour- neying to join his train ; J0 carpenters, or car repairers, and hands in yard employed in shifting trains; 11 car- penters, or car repairers, and train hands ; 12 yard master 103 Ind. 305, 21 Am. & Eng. R. R. Cas. 525 ; IT. & T. C. Ry. v. Rider, 62 Tex. 267, 21 Am. & Eng. R. R. Cas. 583, note ; Rohrback v. P. R. R., 43 Mo. 187 ; P. R. R. v. Wachter, 60 Md. 395, 15 Am. & Eng. R. R. Cas. 187 ; Weger v. P. R. R., 55 Penna. St. 460 ; Henry v. S. I. R. R , 81 N. Y. 373, 2 Am. & Eng. R. R. Cas. 60 ; Gormley v. O. & M. Ry., 72 Ind. 31, 5 Am. & Eng. R. R. Cas. 581 ; Collins v. St. P. & S. C. R. R., 30 Minn. 31, 8 Am. & Eng. R. R. Cas. 150; Tunney v. M. Ry., L. R. 1 C. P. 201 ; Blake v. M. C. R. R-, 70 Me. 60; I. C. R. R. v. Cox, 21 111. 20; St. L. & S. E. Ry. v. Britz, 72 Id. 256 ; Coon r. S. & U. R. R., 5 N. Y. 492 ; Foster v. M. C. R. R., 14 Minn. 360 ; Dallas v. G., C. & S. F. R. R., 61 Tex. 196, 21 Am. & Eng. R. R. Cas. 575 ; St. L., I. M. & S. R. R. v. Shackelford, 42 Ark. 417; Howland v. M., L. S. & W. Ry., 54 Wise. 226, 5 Am. & Eng. R. R. Cas. 578; Copper v. L. E. & St. L. Ry., Ind. , 22 Am. & Eng. R. R. Cas. 277. 1 Whaalen v. M., R. & L. E. Ry., 8 Ohio St. 249. I Brown v. W. & St: P. R. R., 27 Minn. 162. s Brick v. R., N. Y. & P. R. R., 98 N. Y. 212 ; Barringer v. D. & H. C. Co., 19 Hun 216 ; Hoke v. St. L., K. C. & N. Ry., 11 Mo. App. 575 ; Willis v. O. Rv. & N. Co., 11 Oregon 257, 17 Am. & Eng. R. R. Cas. 539 ; Peschel v. C, M. * St. P. Ry., 62 Wise. 338, 17 Am. & Eng. R. R. Cas. 545. 4 Thompson v. C, M. & St. P. Ry., 18 Fed. Rep. 239. 6 McCosker v. L. I. R. R., 84 N. Y. 77, 5 Am. & Eng. R. R. Cas. 567. • Conway v. B. & N. C. Ry., 9 Irish C L. 498. ' Fraker v. St. P., M. & M. Ry., 32 Minn. 54, 15 Am. & Eng. R. R. Cas. 256. 8 C. & E. R. R. v. Geary, 110 111. 383, 18 Am. & Eng. R. R. Cas. 606. 9 Abend v. T. II. & I. Ry., Ill 111. 202, 17 Am. & Eng. R. R.Cas. 614. 10 Manville v. C. <% T. R. R., 11 Ohio St. 417. II Morgan v. V. of N. Ry., L. R. 1 Q. B. 149 ; Oilman v. E. R. R., 10 Allen 233, 13 Id. 433, Valtez v. 6. & M. Ry., 85 111. 500 ; C. A A. R. R. v. Murphy, 53 111. 336. 12 Gilshannon v. C. B R. R., 10 Cush. 228 ; Seaver v. B. & M. R. R., 14 Gray 466 ; Besel v. N. Y. C. & H. R. R. R., 70 N. Y. 171. CASES NOT OF COMMON EMPLOYMENT. 3G9 and train bands; 1 machinist in repair shop and boiler makers in same shop ; 2 yard bands and driver of switch- ing engine; 3 surveying engineer and conductor of train on which he was carried to his place of work; 4 yard hands and their foreman. 5 325. It has been held that the following classes of servants are not fellow-servants, the injured servant being named first and the servant whose negligence caused the injury being named last : engine-driver and conductor, 6 train hands, including engine-driver and fireman, and servants charged with the duty of con- structing and maintaining in repair line, rolling stock, and appliances; 7 train hands and inspector of car re- pairs, 8 train hands, or guards, and labourers on line ; 9 1 Besel v. N. Y. C & H. R. E. R., 70 N. Y. 171 ; Valtez v. O. & M. Ry., 85 111. 500. 1 Murphy v. B. & A. E. R, 88 N. Y. 146, 8 Am. & Eng. E.E. Cas. 510. * Fowler v. C. & N. W. Ey., 61 Wise. 159, 17 Am. & Eng. E. E. Cas. 536. * Eoss v. N. Y. C. & H. E. E. E., 74 N. Y. 617. 6 Fraker v. St. P, M. & M. Ey., 32 Minn. 54, 15 Am. & Eng. E. E. Cas. 256. 6 L. M. E. R. v. Stevens, 20 Ohio 415 ; Chamberlin v. M. & M. E. E., 11 Wise. 238 ; C, M. & St. P. Ey. v. Eoss, 112 U. S. 376. T A., T. & S. F. E. P v. Moore, 29 Kans. 632, 11 Am. & Eng. E. E. Cas. 243, 31 Kans. 197, 15 Am. & Eng. E. E. Cas. 312 ; II. & T. C. Ky. t>. Marcelles, 59 Tex. 334, 12 Am. & Eng. E. E. Cas. 231 ; Gilmore v. N. P. Ey., 18 Fed. Rep. 866, 15 Am. & Eng. E. R Cas. 304 ; Ford v. F. E. E., 1 10 Mass. 241 ; Hough v. T. & P. Ey., 100 U. S. 213 ; Fuller v. Jewett, 80 N. Y. 46 ; P. & N. Y. C. E. E. v. Leslie, 16 Weekly Notes of Cases (Penna.) 321 ; Lawless v. C. E. E. E., 136 Mass. 1, 18 Am. & Eng. E. E. Cas. 96; T. W. & W. By. v. [ngraham, 77 111. 309 ; Davis v. C. V. E. E., 55 Vt. 84, 11 Am. & Eng. E. E. Cas. 173 ; Eyan v. C. & N. W. Ey., 60 111. 171. 8 Cooper v. P., C. & St. L. E. E., 24 W. Va. 37, 21 Am. A Eng. E. E. Cas. 564 note; Schultz v. C, M. & St. P. Ey., 48 Wise. 375; M. P. Ky. »•. Condon, 78 Mo. 567, 17 Am. & Eng. E. E. Cas. 583; Long v. P. Ky., 65 M,,. 226 ; K iug v. M. Ey., 14 Fed. Eep. 277, 8 Am. & Eng. E. E. Cas. 119 ; Brann v. C, E. I. & P. Ey., 53 Iowa 595; Tierney v. M. & St. L. Ey., 33 Minn. 311, 21 Am. & Eng. R R. Cas. 545. * Lewis v. St. L. & 1. M. R. R., 59 Mo. 495; Hall v. M. P. Ky., 74 Id. 298, 8 Am. & Eng. R. R. Cas. 106 ; Moon v. R. & A. R. R., 78 Va. 745, 17 Am. & Eng. R. R. Cas. 531. 24 370 VOLUNTEER SERVANTS. train hands, or guards, and the conductor of their train ; * train hands, or guards, and labourers on the line ; 2 sec- tion foreman and engine-driver of train, 3 helper in ma- chine shop and the workman whom he is employed to help, 4 car repairer and his foreman, 5 labourer and train dispatcher, 6 labourer and engine-driver, 7 labourer and foreman acting as conductor of a construction train, 8 labourer and section boss, 9 and labourer and fireman, or stoker. 10 326. The rule of law, that a master is not liable to a servant for injuries caused by the negligence of a fellow- servant in the course of their common employment, prevents a recovery by a volunteer injured while assist- ing the servant in his work, for the obvious reason that a stranger cannot, by volunteering his services and thereby exposing himself to danger, acquire any greater rights, nor impose any greater duty on the master, than would have been acquired by the one, or imposed upon the other, il the stranger had been hired as a servant. 11 1 C, C. & C. Ry. v. Keary, 3 Ohio St. 201 ; Cowles v. R. & D. R. R., 84 N. C. 309, 2 Am. & Eng. R. R. Cas. 90 ; Moon v. R. & A. R. R., 78 Va. 745, 17 Am. & Eng. R. R. Cas. 531. 2 Carroll v. N. & C. R. R., 6 Heisk. (Tenn.) 347. 3 Dick v. I. C. & L. R. R., 38 Ohio St. 389, 8 Am. & Eng. R. R. Cas. 101. * TJ. P. R. R. v. Fort, 17 Wall. 553. 5 L, S. & M. S. Ry. v. Lavalley, 36 Ohio St. 221, 5 Am. & Eng. R. R. Cas. 549 ; H. & St. J. R. R. v. Fox, 31 Kans. 587, 15 Am. & Eng. R. R. Cas. 325. 6 McKune v. C. S. R. R., Cal, , 17 Am. & Eng. R. R. Cas. 589, 21 Id. 539. ' L. & N. R. R. v. Collins, 2 Duvall 114 ; Dobbins v. R. & D. R. R., 81 N. C. 446 ; P., F. W. &. C. Ky. v. Powers, 74 111. 341 ; Dick v. I. C. & L. R. R., 38 Ohio St. 389, 8 Am. & Eng. R. R. 101. 8 C, St. P., M. & O. R. R. v. Lundstrom, 16 Neb. 254, 21 Am. & Eng. R. R. Cas. 528. 9 L. & N. R. R. v. Bowler, 9 Heisk. (Tenn.) 866. 10 C. & N. Vi. Ry. v. Moranda, 93 111. 302. 11 Degg v. M. Ry., 1 H. & N. 773 ; Potter v. Faulkner, 1B.&S. 800, 101 E- C. L. ; Everhart v. T. H. & I. R. R., 78 Ind. 292, 4 Am. & Eng. R. R. Cas. 599; Flower v. P. R. R., 69 Penna. St. 210 ; Sherman v. II. & St. J. R. R., 72 Mo. 62, 4 Am. & Eng. R. R. Cas. 589 ; Osborne v. K. & L. R. R., 68 Me. 49 ; Jewell v. G. T. Ry., 53 N. H. 84. VOLUNTEER SERVANTS. 371 This rule has been held to bar recovery in the case of "volunteers injured while assisting railway servants ifl turning a turn-table, 1 in setting a brake on a moving car, 2 in watering an engine, 3 in adjusting the load on a freight car in motion, 4 or in moving a crate of merchandise. 5 On the other hand, it has been held that the rule does not bar recovery in the case of a passenger who, having alighted from the car of a street railroad after it had been derailed, and having assisted in putting it on the track, was, while climbing over the front dasher, injured by the negligent act of the driver in starting the horses ; 6 nor in the case of a passenger on a street car, who is in- jured while engaged, at the request of the driver, in assisting to shunt the car to a siding ; 7 but, as in the two last cited cases, the plaintiffs were injured by reason of their voluntary participation in the work of the ser- vants of the railway, it would seem that the railway ought not to have been held liable for their injuries. The rule does not bar recovery by a passer-by, who, at the request of a servant, pauses to give his advice as to the work, but does not otherwise participate in its prosecution ; 8 nor by a passenger who, having rendered some assistance on a train to the railway servants, and, having resumed his place as a passenger, is subsequently injured by the negligence of a railway servant; 9 nor by persons who are not volunteers, but who participate in the work of the railway for some purpose of common interest to themselves and the railway, as where con- 1 Degg v. M. Ry., 1 H. & N. 773. « Everhart v. T. II. & I. R R., 7S Ind. 292, 4 Am. & Eng. R. R. Cas. 599. 3 Flower v. P. R. R., 69 Penna. St, '210. ♦ Sherman v. H. & St. J. I!. B., 72 Mo. (12, 4 Am. & Eng. R. R. Cas. 589. 5 Jewell v. G. T. Ry., 55 N. H. 84. 8 P. P. Ry. v. Green, 56 Md. 84, 6 Am. & Eng. R. R. Cas. 168. 7 Mel. R. R. v. Bolton, 43 Ohio St. 221, 21 Am. & Eng. K. B. Cas. 501. 8 Cleveland v. Speyer, 16 C. B. N. S. 399, 111 E. C. L. 9 C. V. R. R. v. Myers, 55 Penna. St. 2S8. 372 EX-SERVANTS. -signees assist in the reception of their freight ; l nor by servants of another railway who have come upon the line, or premises, of the defendant railway in the per- formance of their duty to that other railway ; 2 nor does the rule bar recovery in the case of a servant of a rail- way for injuries caused by the negligence of the servants of another railway in the exercise of running powers by the latter railway over the line of the first-mentioned railway ; 3 nor in the case of the servant of a connecting steamboat line, who is similarly injured ; 4 nor does the rule bar a recovery from the railway by a servaut for in- juries caused to that servant's wife by the negligence of a fellow-servant. 5 If the relation of service is termi- nated, the ex-servant is not barred from recovering for injuries caused by his late fellow-servants. 6 A servant employed by the day, who is injured after he has fin- ished his day's work, or at a time when he is not in the service, is no longer a fellow-servant of another servant by whose negligence he is injured, and can, therefore, recover from the master for injuries so received. 7 1 Holmes v. N. E. By., L. E. 4 Ex. 254, 6 Id. 123 ; Wright v. L. & N. W. By., L. B. 10 Q. B. 298, 1 Q. B.D. 252; Kelly v. Johnson, 128 Mass. 530. 2 Vose v. L. & Y. By., 2 H. & N. 728 ; Warburton v. S. W. By., L. B. 2 Ex. 30 ; Swainson v. N. E. By., 3 Ex. Div. 341 ; Graham v. N. E. By., 18 C. B. N. S. 529, 114 E. C. L. ; C. B. B. v. Armstrong, 49 Penna. St. 186, 52 Id. 282 ; P., W. & B.B. B. v. The State, to use of Bitzer, 58 Md. 372, 10 Am. & Eng. B. B. Cas. 792 ; Merrill v. C. V. B. B., 54 Vt. 200; Snow v. II. B. B, 8 Allen 441 ; Bee also Abraham v. Beynolds, 5 H. &, N. 142. 3 Smith v. N. Y. & II. E. E., 19 N. Y. 127. * Carroll v. M. V. B. B., 13 Minn. 30. 5 Gannon v. H. B. B., 112 Mass. 234. 6 Packet Co. v. McCue, 17 Wall. 508. / 7 Baird v. Pettit, 70 Penna. St. 477 ; B. & O. E. B. v. The State, to use of Trainor, 33 Md. 542; Abell v. W. M. E. E., 63 Md. 433, 21 Am. & Eng. B. B. Cas. 503. SERVANTS CONTRIBUTORY NEGLIGENCE. 373 VIII. THE SERVANT'S CONTRIBUTORY NEGLIGENCE. It is contributory negligence in a servant to continue work with incom- petent servants, or with an insufficient number of servants, or with obviously defective machinery or appliances, or to carelessly expose himself to danger in the conduct of his work; but when the servant has complained to the proper officer of the defective apparatus, or of the negligent fellow-servant, or of the inadequacy in the number of servants, and he has been promised that the defect complained of shall be remedied, the servant is not contributor ily negligent in continuing work, provided, that the defect be not of such a character as to render continuance in the work obviously and unavoidably dangerous. 327. A servant cannot recover for injuries to which his own negligence has contributed in voluntarily- continuing to work, either with incompetent fellow- servants; 1 or, with an insufficient number of fellow- servants; 2 or, with obviously defective machinery and appliances; 3 or, under running arrangements of trains whereby the risk of injury to him is increased; 4 or, in 1 Frazier v. P. R. R., 38 Penna. St. 104 ; L. S. & M. S. Ry. v. Knittal, 33 Ohio St. 468 ; Kroy v. C, R. I. & P. Ry., 32 Iowa 357 ; cf. Huey v. D. & B. J. Ry., 5 Irish C. L. 206. 2 Skip v. E. C. Ry., 9 Ex. 243 ; C. & E. I. R. R. v. Geary, 110 111. 383, 18 Am. & Eng. R. R. Cas. 606 ; B. & O. R. R. v. State, 41 Md. 268 ; C. & N. W. Ry. v. Donahue, 75 111. 106. 3 Dynen v. Leach, 26 L. J. Ex. 221 ; Assop v. Yates, 2 H. & N. 768 ; Grif- fiths v. Gidlow, 3 Id. 648 ; Woodley v. M. D. Ry., 2 Ex. D. 384; Marsden v. Haigh, 14 Weekly Notes of Cases (Penna.) 526 ; G. & C Ry. v. Bresmer, 97 Penna. St. 103 ; P. & R. R. R. v. Schertle, Id. 450, 2 Am. A ring. K. K. < as. 158; Cooper v. Butler, 103 Penna. St. 412; C. & A. R. R. v. Monroe, 85 111. 25 ; Perigo v. C, R. I. & P. R. R., 52 Iowa 276 ; Muldowney v. I. C. R. I: ., 89 Id. 615 ; Kroy v. C, R. I. & P. R. R, 32 Id. 357 ; Way ». I. « '. K. I.'.. -40 Id. 341; Mansfield C. & C. Co. v. McEnery, 91 Penna. St. 185; Wanaraaker v. Burke, 17 Weekly Notes of Cases (Penna.) 225 ; De Graff v. N. Y. C. & 1 1. B. R. R., 76 N. Y. 125-; Hathaway v. M. C. R. R., 51 Mich. 253, 12 Am. & Eng. R. R. Cas. 249 ; I. C. R. R. v. Jewell, 46 111. 99 ; Greenleaf v. I. I !. B . I: . 29 Iowa 14; Greenleaf v. D. & S. C. R. R., 33 Iowa 52; A. & < '. L L. B. R. Ray, 70 Ga. 674, 22 Am. & Eng. R. R. Cas. 281 ; Marsh v. < flickering, 101 N. Y. 396. * Robinson v. H. & T. C Ry., 46 Tex. 640. See Nelson v. C, M. & St. P. R. R., 60 Wise. 320, 22 Am. & Eng. R. R. Cas. 391, as to the necessity of allowing 0/4 RIDING ON ENGINE. carelessly exposing himself to danger in the conduct of his work. 1 Thus, it has been held to be contributory negligence in a servant to ride on an engine when his duty does not require him to be there ; 2 but it is, of course, not contributory negligence in a servant to ride on the engine when his duty requires him to be there, as, in the case of the chief brakeman of a freight train. 3 It is not contributory negligence in a servant to ride in a baggage car, for that is not necessarily a position of danger. 4 It has been held to be contributory negligence in an engine-driver to drive his engine at high speed over a defective roadbed whose defects are known to him ; 5 or, to drive his engine, after a storm, over a line which is liable to be obstructed by land slides or wash outs, at such a rate of speed that the engine cannot be stopped in time to avoid collision with an obstruction; 6 to conductors and engine-drivers a reasonable opportunity for the examination and comprehension of changes in time-tables. 1 Senior v. Ward, 1 El. & El. 385, 102 E. C. L. ; Cooper v. Butler, 14 Weekly Notes of Cases (Penna.) 278 ; Payne v. Ross, 100 Penna. St. 301 ; Powers v. N. Y., L. E. & W. R. R, 98 N. Y. 274 ; (sed cf. E. T. V. & G. R. R. v. Smith, 9 Lea (Tenn.) 685); H. & T. C. Ry. v. Myers, 55 Tex. 110 ; Behrens v. K. P. Ry., 5 Colo. 400, 8 Am. & Eng. R. R. Cas. 184; Muldowney v. I. C. R. R., 39 Iowa 615 ; Wolsey v. L. S. R. R., 33 Ohio St. 227 ; Ferguson v. C. I. Ry., 58 Iowa 293 ; Lockwood v. C. & N. W. Ry., 55 Wise. 50; Abend v. T. H. & I. Ry., Ill 111. 202, 17 Am. & Eng. R. R. Cas. 614 ; Crutchfield v. R. & D. R. R., 78 N. C. 300 ; B. & O. R. R. v. Whittington, 30 Gratt. 805 ; Sammon v. N. Y. & H. R. R., 62 N. Y. 251 ; C. & A. R. R. v. Rush, 84 111. 570 ; Penna. Co. v. Lynch, 90 111. 333; Cunningham v. G, M. & St. P. Ry., 17 led. Rep. 882; Hallihan v. H. & St. J. R. R., 71 Mo. 113, 2 Am. & Eng. R. R. Cas. 117 ; Williams v. C. R. R., 43 Iowa 396 ; Hoven v. B. & M. R. R., 20 Iowa 562. 2 Sprong v. B. & A. R. R., 58 N. Y. 56 ; O'Neill v. K. & D. M. Ry., 45 Iowa 546 ; Kresanowski v. N. P. Ry., 18 Fed. Rep. 229 ; B. & P. R. R. v. Jones, 95 U. S. 439 ; Smith v. M. & L. R. R., 18 Fed. Rep. 304 ; Abend v. T. H. & I. Ry., Ill 111. 202, 17 Am. & Eng. R. R. Cas. 614 ; Doggett v. I. C. R. R., 34 Iowa 284. 8 Sprong v. B. & A. R. R., 58 N. Y. 56. * Washburn v. N. & C. R. R, 3 Head (Tenn.) 638. 5 M. & C. R. R. v. Thomas, 51 Miss. 637 ; I. C. R. R. v. Patterson, 69 111. 650, 93 Id. 290. 6 Sweeney v. M. & St. L. Ry., 33 Minn. 153, 22 Am. & Eng. R. R. Cas. 302. GOING UPON THE LINE. 375 or, to drive his engine over a switch at a rate in excess of that permitted by the regulations of the railway ; x or, to drive his engine with an obviously defective boiler, under a pressure of steam in excess of the amount per- mitted by the regulations of the line; 2 but it has been held not to be necessarily contributory negligence in an engine-driver to run his engine with ordinary care on a line which he knows to be somewhat out of repair, but as to whose specific defects he has no information ; 3 nor, is it necessarily contributory negligence in the engine- driver of a train which is behind time, to drive his engine at a greater than schedule rate of speed when approaching a switch at the entrance to a railway yard. 4 328. It is contributory negligence in a servant to unnecessarily go upon or cross the line, without exer- cising care for his safety ; 5 but it is not necessarily con- tributory negligence in a servant to go on the line in the course of duty in the way of a moving train, if he has reason to believe that the train will be brought to a stop before reaching him ; 6 or, to pick up a coupling- pin from the track before a slowly moving train, when he has signalled the engine-driver to stop. 7 In some cases it is held, following the doctrine, of Da vies v. Mann, that even if a servant be contributorily negligent in going upon the line or between the cars, and is 1 M. & C. R. R. v. Thomas, 51 Miss. 637 ; G. R. R. & B. Co. v. Oaks, 52 Ga. 410. 2 Ilubgh v. N. O. & C. R. R., 6 La. An. 495. 3 Mehan v. 8. B. & N. Y. R. R, 73 N. Y. 585 ; JIawley v. N. C. By., 82 Id. 370, 2 Am. & Eng. R. R. Cas. 248; Dale v. St. L., K. I !. & N. Ky., 63 Mo. 455. * Penn. Co. v. Roney, 89 Ind. 453, 12 Am. & Eng R. R. « las. 223. 5 Maher v. A. & P. R. R., 64 Mo. 267 ; Bolland v. C, M. & St. P. Ky.. L8 Fed. Rep. 243; Boldt v. N. Y. C. R. R., 18 N. Y. 432; contra, Farley v. < , R I. & P. Ry., 56 Iowa 337, 2 Am. & Eng. R. R. Cas. 108 : K I \ I 5 Colo. 400, 8 Am. & Eng. R. R. Cas. 184; dark v, B. & A R. B., L28 tfaaa, 1, 1 Am. & Eng. R.R. ( as. 134. 8 Steele v. C. R. R., 43 Iowa 109. 7 Steele v. C. K. R., 18 Iowa 109. 376 BOARDING AND LEAVING CABS. injured by the negligence of fellow-servants, who know of his danger, and who, by the exercise of care, could avoid injuring him, the railway is liable to him for such injury. 1 It is contributory negligence in a servant to unnecessarily get on or off moving engines or cars; 2 but it is not contributory negligence in a servant to jump from a moving train in order to avoid an apparent danger, such as an imminent collision; 3 and in any such case, it is for the jury to decide whether or not the act of the person injured was, under the circum- stances, prudent. 4 It is contributory negligence in a servant to stand on an axle-box of a car in motion ; 5 or to sit upon a platform car in motion with his feet hanging over the side of the car; 6 or to unnecessarily project his body from the door of a baggage car in motion, so that it comes into contact with a bridge sup- port. 7 329. It is contributory negligence in a servant to couple cars in an unnecessarily dangerous manner, 8 but 1 B. & O. R. R. v. The State, 33 Md. 542; Bomick v. C, B. I. & B. By., 62 Iowa 627, 15 Am. & Eng. B. B. Cas. 288. * Cunningham v. C, M. & St. B. By , 17 Fed. Bep. 882; Dowell v. V. & M. B. B., 61 Miss. 519, 18 Am. & Eng. E. B. Cas. 42; Timmon v. C. O. B. B., 6 Ohio St. 105. 3 C. B. B. & B. Co. v. Bhodes, 56 Ga. 645. * C. B. B. v. Eoach, 64 Ga. 635, 8 Am. & Eng. B. E. Cas. 79. 5 Martensen v. C, E. I. & B. By., 60 Iowa 705, 11 Am. & Eng. E. E. Cas. 233. 6 St. L. & S. F. E. B. v. Marker, 41 Ark. 542 ; cf. Fool v. C, M. & St. B. By., 53 Wise. 657, 3 Am. & Eng. E. E. Cas. 332. 7 Jones v. L. E. E., Ky. , 22 Am. & Eng. E. E. Cas. 295, note ; cf. H. & T. C. B. E. v. Hampton, 64 Tex. 427, 22 Am. & Eng. E. E. Cas. 291. 8 C & A. E. E. v. Bush, 84 111. 570 ; Muldowney v. I. C. E. E., 39 Iowa 615 ; Lockwood v. C. & N. W. Ey., 55 Wise. 50, 6 Am. & Eng. E. B. Cas. 151 ; T., W. & W. Ey. v. Black, 88 111. 112; Foster v. C. & A. E. E., 84 111. 164; Penna. Co. v. Hankey, 93 111. 580 ; Williams v. C. E. E., 43 Iowa 396 ; B. & B. E. E. v. Schertle, 97 Benna. St. 450, 2 Am. & Eng. B. E. Cas. 158 ; M. B. Ey. v. Lyde, 57 Tex. 505, 11 Am. & Eng. E. B. Cas. 188 ; Ferguson v. C. L By., 58 Iowa 293, 5 Am. & Eng. R. E. Cas. 614; Hulett v. St. L., K. C. & N. E. E., 67 Mo. 239. COUPLING CARS. 377 it is not necessarily contributory negligence in a train hand to go between cars for the purpose of coupling them without first examining the draw-bars in order to see that they are properly adjusted, for every servant is entitled to assume that the instrumentalities of worK provided by the master are in good order. 1 Nor, if cars are moving at a high rate of speed, and the brake- man has signalled the engine-driver to slow up, is it contributory negligence in the brakeman, in reliance on the engine-driver's compliance with his request, to go between the cars for the purpose of coupling them; 2 nor is it necessarily contributory negligence in a brake- man to stand facing the draw-bar while coupling; 3 nor is it necessarily contributory negligence in a train hand to step, while his train is in motion, from the top of one car to another; 4 nor to jump from the top of a freight car to the tender rather than to climb down the laddei at the side of the car. 5 330. It is contributory negligence in a servant to lie down to sleep on the floor of a round-house so near the track that in turning over in his sleep he puts his leg on the track, where it is run over by an engine when backed into its stall, 6 or to travel on the line in a hand car when a train is known by the injured servant to be due, 7 or to travel on the line in a hand car unprotected 1 King v. O. R. R. (U. S. C. C. Ind.), 8 Am. & Eng. R. R. Cas. 119 ; Russell v. M. & St. L. R. R., 32 Minn. 230. J Beeras v. C, R. I. & P. Ry., 58 Iowa 150, 10 Am. & Eng. R. R. Cas. 658 ; Snow v. H. R. R., 8 Allen 441. 8 Eclair v. C. & N. W. Ry., 43 Iowa 662. * A., T. & S. F. R. R. v. McCandliss, 33 Kans. 366, 22 Am. & Eng. R. R. Cas. 296. * Whitsett v. C, R. I. & P. Ry., Iowa , 22 Am. & Eng. R. R. Cas. 336. 8 Price v. H. & St. J. R. R., 77 Mo. 508, 15 Am. & Eng. R. B. I ■>- 168. * Burling v. I. C. R. R., 85 111. 18; I. C. R. R. v. Modglin, LI. 481 ; Bed ef. Campbell v. 0,, R. I. & P. Ry., 45 Iowa 76 ; McKune v. C. S. R. R., Cal. 17 Am. & Eng. R. B. Cas. 589. 378 RIDING ON TOP OF CARS. by flagging in advance, the regulations of the railway having notified the servant that special trains may be expected at any time, 1 or to stand so near to the line as to be struck by a passing car, 2 or to use a temporary platform of pine wood as a bridge in moving heavy freight from one car to another when a stronger platform was available, 3 or to neglect to keep wet the rope of the derrick with which he is working, 4 or to unnecessarily mount on an engine on a turn-table, 5 or to knowingly disobey the regulations of the railway, which, if obeyed, would have prevented the injury, 6 or to attempt, in coupling moving cars, to pass round the end of a freight car which was not equipped with end ladders, platforms, steps, or handles, 7 or to ride on the top of a car where the servant's duty does not require him to put himself in that exposed position, 8 but it is not necessarily con- tributory negligence in a freight brakeman to climb to the top of a moving car in a railway yard for the pur- pose of braking it, and thus averting an impending collision with another car. 9 331. It is not under all circumstances contributory negligence in a servant to expose himself to a danger which he could avoid ; for instance, an engine-driver is not bound to desert his post on the engine, in order to 1 McGrath v. N. Y. & N. E. R. R., Mass. , 18 Am. & Eng. R. R. Cas. 5. 2 B. & O. R. R. w.Whittington, 30 Grat. (Va.) 805. s Penna. Co. v. Lynch, 90 111. 333. * U. P. Ry. v. Fray, 31 Kans. 739, 15 Am. & Eng. R. R. Cas. 158. 5 E. T. V. & G. R. R. v. Toppins, 10 Lea (Tenn.) 58, 11 Am. & Eng. R. R. Cas. 222. 6 Lyon v. D., L. & L. M. Ry., 31 Mich. 429 ; G. R. R. & B. Co. v. McDade, 59 Ga. 73, 60 Id. 119 ; Wolsey v. L. S. & M. S. Ry., 33 Ohio St. 227. 7 C, B. & Q. R. R. v. Warner, 108 111. 538, 18 Am. & Eng. R. R. Cas. 100. 8 P. & C. R. R. v. Sentmayer, 92 Penna. St. 276 ; Gibson v. E. Ry., 63 N. Y. 449. • Kelley v. C, M. & St. P. Ry., 50 Wise. 381, 2 Am. & Eng. R. R. Cas. 65. servant's contributory negligence. 379 escape an impending collision; 1 but a servant is con- tributorily negligent when he exposes himself to a danger which he could avoid without neglecting his duty by the exercise of reasonable care for his own safety. If, however, the danger be not so great, nor so imminent, that a man of ordinary prudence would re- fuse to encounter it in the performance of his duty, the servant who voluntarily incurs that danger is not neces- sarily contributorily negligent. 2 It may also be said that when a servant is injured by reason of his presence in a position of danger, the burden of proof is on him to show that his duty to the railway requires him to place himself in that position. 3 332. The general doctrine as to the effect of a servant's contributory negligence in barring his recovery is well illustrated by Cunningham v. C, M. & St. P. Ey., 4 where a mother having brought suit to recover for the death of her son, a yardman, who was killed in attempt- ing to step on the rear foot-board of a switching engine which was backing towards him, Miller, J., after re- ferring to the obligation on the part of the railway to exercise care in providing the instrumentalities of labour, added, "a man has no right to thrust himself foiward into a dangerous position and say, 'if I am killed, somebody will get damages for it,' or, 'if I am hurt, I shall go to the hospital and be taken care of and recover damages.' He has got to take care of himself, as well as the railroad to take care of their duties and their employes. These obligations are mutual, and it 1 Cottrill v. C., M. & St. P. Ry., 47 Wise. 634 ; Penna. Co. v. Roney, 89 Tnd. 453, 12 Am. & Eng R. R. Cas. 223. * Stoddard v. St. L., K. C. & N. Ry., 65 Mo. 514; C. C. R. R. v. Og:>; Lombard v. Same, 47 Id. 494; Frandsen v. Same, 3G Id. :;7'J. 384 STATUTES AFFECTING LIABILITY. employes of the corporation to any person sustaining such damage, all contracts to the contrary notwithstand- ing." The constitutionality of this Act has been sus- tained in Rose v. D. M. R. R. 1 The statutes in the other States are of similar import. 2 1 39 Iowa 246. x See notes to K. P. Ey. v. Peavey, 11 Am. & Eng. E. E. Cas. 260. THE FORM OF ACTION. 385 BOOK IV. THE REMEDY. CHAPTER I. THE FORM OF THE ACTION. T. When the remedy is by action at law and when by suit in equity. ft. "When an action of trespass will lie. TEI. The distinction between case and assumpsit. IV. The joinder of common law and statutory claims. V. Payment of money into court. 1. WHEN THE REMEDY IS BY ACTION AT LAW, AND WHEN BY SUIT IN EQUITY. The remedy is by action at law, excepting in those cases where the in- jury has been done in the operation of a line by a receiver appointed by a court of equity, and the court has refused to the plaintiff leave to sue its receiver at law ; in such a case the plaintiff's only remedy is in equity. 338. The remedy of the injured party is by an action at law, excepting in those cases where the injury has been done in the operation of a railway by a receiver acting under the order of a court of equity, and the court has refused to the plaintiff leave to bring his action at law ; in such a case the only remedy of the plaintiff is to present his claim on the fund in the re- ceiver's hands at the audit of the receiver's accounts, for it must be remembered that a receiver, as an officer of the court appointing him, is only suable by its per- 1 Barton v. Barbour, 104 U. S. 135 ; Klein v. Jewett, 2G N. J. Eq. 474. 25 380 CONTRACT AND TOUT. The distinction between actions sounding in tort and actions sounding in contract is in theory only formal, but in practice the distinction 13 material. 339. English lawyers, following in the footsteps of the civil law, have drawn a sharp distinction between actions sounding in tort and in contract, yet, as Mr. Robert Campbell has pointed out, 1 this distinction is in theory only formal, for all actions at law are grounded upon the breach of a duty. That duty may have been imposed upon the railway, either by its contract with the plaintiff, or by reason of the relation in which the plaintiff stands to it. In the former case the plaintiff's right of action may be said to arise ex contractu, and in the latter case ex delicto, but in either case the plain- tiff's right to recover is necessarily based upon the railway's breach of duty to him ; yet, in jurisdictions where the common law rules of pleading and practice have not been materially departed from, the form in which the plaintiff brings his action may control the amount of his damages, or even affect his right to re- cover. II. TRESPASS. The railway is liable in trespass only for injuries wilfully inflicted by its express authority or subsequently ratified. 340. To render a railway liable in trespass for per- sonal injuries, it is incumbent upon the plaintiff to show that the injury was wilfully inflicted by an agent, or servant, of the railway, and that the act which caused the injury was expressly directed, or subsequently rati- fied, by the corporation. 2 A railway company can act only by its agents, or servants. When, therefore, a plain- 1 Treatise on the Law of Negligence 12. 1 Gregory v. Piper, 9 B. & C. 591, 17 E. C. L. ; Yerger v. Warren, 31 Penna. St. 319 ; McLaughlin v. Pry or, 4 M. &. G. 48, 43 E. C. L. ; Gordon v. Rolt, 4 Ex. 364. TRESPASS. 387 tiff has been injured, that injuiy, in almost every con- ceivable case, has resulted, not from the exercise of wilful force upon the part of the defendant company, nor by the action of its agents and servants in obedience to orders, or express instructions, but from the negli- gence of those agents or servants. If the driver of an engine were, under the express instructions of an execu- tive officer of the corporation, to run down a person, or an animal, upon the line, or if, in obedience to the same authority, the train hands were forcibly to eject a pas- senger from the train, the corporation would be liable in trespass. In the leading case of Scott v. Shepherd, 1 the defendant was held liable to the plaintiff in trespass because, by wantonly throwing the squib, he was held to have intended all the consequences that followed upon the original throwing. As Tilghman, C. J., said in Smith v. Rutherford: 2 " the criterion of trespass is force directly applied." Therefore, to render a de- fendant liable in trespass, the act which injured the plaintiff must have been done either personally by the defendant, or by the defendant's servants, under his express instructions. In Gregory v. Piper, 3 the defend- ant, in order to obstruct a right of way claimed by the plaintiff, had directed his servant to pile rubbish on his premises near to, but not touching, the plaintiff's wall. The servant did the work carefully, but some of the rubbish naturally ran against the wall. It was held that the defendant was liable in trespass, Littledale, J., saying: "if the servant, therefore, in carrying into execution the orders of his master, uses ordinary care and an injury is done to another, the master is Liable in trespass. If the injury arises from the want of ordinary care, and an injury is done to another, the master is 1 2 W. Bl. 892, 1 Sm. L. C. 549. * 2 S. & R. 3G0. » 9 B. & C. 591, 17 E. C. L. 3S8 TRESPASS. liable in case." In Yerger v. Warren, 1 the facts were almost identical with those in Gregory v. Piper, and judg- ment for the plaintiff in the court below was reversed in the Supreme Court, because the judge at the trial had directed the jury that the relation of master and servant rendered the defendant liable in trespass, whereas the jury should have been instructed that, unless the wrong complained of had been done by the defendant's order, he could not be liable for the trespass. In McLaugh- lin v. Pryor, 2 the defendant sitting in his carriage had directed his postilion to drive into a line of carriages under such circumstances that his carriage necessarily collided with the plaintiff's carriage. It was held that he was liable to the plaintiff in trespass. In Gordon v. Holt, 3 the defendant was a contractor, whose servants, without his authority, broke the plaintiff's crane ; it was held that the defendant was not liable, Parke, B., saying : " the result of the authorities is, that if a ser- vant in the course of his master's employ drives over any person and does a wilful injury, the servant, and not the master, is liable in trespass ; if the servant by his negligent driving causes an injury, the master is liable in case. If the master himself is driving, he is liable in case for his negligence, or in trespass because the act was wilful." In P. G. & N. K. E. v. Wilt, 4 the defend- ant's train at a highway crossing struck the plaintiff's wagon and injured it. Verdict and judgment for the plaintiff in trespass was reversed, Rogers, J., saying : " A master is not liable, either in trespass, or in case, for the wilful act of his servant, as by driving his mas- ter's carriage against another without his direction, or assent. But he is liable to answer for any damage aris- ing to another from the negligence, or unskilfulness, 1 31 Penna. St. 319. » 4 M. & G. 48, 43 E. C. L. 3 4 Ex. 364. * 4 Whart. 143. TRESPASS. 389 of his servant acting in his employ. * * * * * * The authorities are uniform that case, not trespass, is the proper remedy." Sharrod v. L. & N. W. By. 1 is to the same point. There the plaintiff's sheep, through a defect in a fence, got upon the defendant's line, and were run over by an engine driven at the rate of speed allowed by the defendant's regulations. It was held that the plaintiff could not recover in trespass, Parke, B., saying, page 585 : " The maxim qui facit per alium facit per se, renders the master liable for all the negli- gent acts of the servant in the course of his employment, but that liability does not make the direct act of the servant the direct act of the master. ****** I n a ]i cases where the master gives the direction and control over a carriage, or animal, or chattel, to another rational agent, the master is only responsible in an action on the case for want of skill, or care, of the agent, and no more." In A. V. B. B. v. McLain, 2 the plaintiff was wrongfully ejected by the defendant's conductor from a car, and it was held, reversing the court below, that the defendants were not liable in trespass for its servant's act done without its authority, assent, or even knowledge." Drew v. Peer 3 maintains the converse of the proposi- tion, for the plaintiff, having brought case against the defendant, the proprietor of a theatre, for his wrongful expulsion from a theatre, it was held that the act hav- ing been committed in the ordinary course of a servant's employment, but not by the express instructions of the defendant, the action was rightly case, and nol trespass. So in Holmes v. Mather, 4 where the defendant being driven by his servant, and not interfering with his ser- vant's management, the horses ran away, and in turning a corner struck the plaintiff, it was held thai case, not tres- 1 4 Ex. 580. ' ;, 1 Penna. St. 1 12. 3 y3 Penna. St. 234. * L. R. 10 Ex. 261. 390 CASE AND ASSUMPSIT. pass, was the proper form of action, because the injury was done by the servant without the master's express in- structions. Therefore, when a person has been injured by negligence upon the part of a railway, or upon the part of the servants of that railway, the railway is not liable in trespass. It is also to be remembered that the action of trespass, being founded ujxm possession, cannot be brought for injury to personal property, unless that personal property was, at the time of the injury, in the possession of the plaintiff. 1 Nor can a father recover in trespass for an injury to a son, who, at the time of the injury, is not in his service. 2 III. CASE AND ASSUMPSIT. Passengers and servants of the railway may, by virtue of the con- tractual relation between the railway and themselves, sue either in case or assumpsit, bid all other persons can sue only in case, for the relation between the railway and such persons is non-contractual. 341. He who, not being a passenger nor a servant of the railway, and consequently not standing in a contractual relation to the railway, is injured in the course of its operations, can ground his action only on the railway's breach of duty implied by law, for there is no privity of contract between him and the railway. An injured passenger may sue either in assumpsit upon the contract, or in case upon the breach of the duty raised by the law. 3 The general principle is, as stated 1 Ward v. McCauley, 4 T. R. 490 ; Spencer v. Campbell, 9 W. & S. 32. 2 Wilt v. Vickers, 8 Watts 227. 3 Ansell v. Waterhouse, 6 M. & S. 393 ; Pozzi v. Shipton, 8 Ad. & El. 963. 35 E. C. L.; Brothcrton v. Wood, 3 Brod. & B. 54, 7 E. C. L.; Bank of Or- ange v. Brown, 3 Wend. 158 ; McCall v. Forsythe, 4 W. & S. 179 ; Zell v. Arnold, 2 Pen. & W. 292; Pittsburgh v. Grier, 22 Penna. St. 54; Marshall v. Y. X. & B. Ry.. 11 C. B. 655, 73 E. C. L.; Skinner v. L. B. & S C. Ry., 5 Ex. 787 ; G. N. Ry. v. Harrison, 10 Ex. 376 ; Austin v. G. W. Ry., L. R. 2 Q. B. 442 ; FoulkesV M. D. Ry., 4 C. P. D. 267, 5 Id. 157 ; P. & R. R. R. v. Derby, 14 How. 468; Alton v. M. Ry., 19 C. B. N. S. 243, 115 E. C. L. ; P R. R. v. CASE AND ASSUMPSIT. 391 by Lord Campbell in Brown v. Boorman, 1 that, "wher- ever there is a contract, and something to be done in the course of the employment which is the subject of that contract, if there is a breach of a duty in the course of that employment, the plaintiff may either recover in tort or in contract." Holroyd, J., in Ansell v. Waterhouse, 2 puts the same view, saying, " although the law will raise a contract with a common carrier to be answerable for the careful conveyance of his passen- gers, nevertheless he may be charged in an action upon the case for a breach of his duty." Yet the action, when brought to recover for injuries to a passenger, or to a servant of the railway, is so far founded upon the contractual relation between the railway and the person injured, that, whether the form of the action be case or assumpsit, a stranger to the contract cannot recover therein. 342. While, as Byles, J., said in Alton v. The Mid- land By., 3 " the plaintiff has his election to sue either upon the contract or for the tort," yet, " by changing the form of action, the right to sue cannot be extended to a 'stranger,'" for, as Blackburn, J., said, in Ilobbs v. L. & S. W. By., 4 " the action is in reality upon a contract; it is commonly said to be founded upon a duty, but it is a duty arising out of a contract." The action, therefore, when brought by an injured passenger, is so far founded upon the railway's duty as arising out of the contract between the railway and the passenger, that only a party privy to that contrail can recover, whether the form of action be case or assumpsit. Thus, in Alton v. Midland By., 5 the plaintiff declared in case Peoples, 31 Ohio St. 537 ; B. C. P. Ry. v. Kemp, 61 Md. 74, 18 Am. & Eng. R, R. Cas. 220 ; Nevin v. P. P. C. Co., 10G 111. 222, 11 Am. & Eng. R. R. Cas. 92. 1 11 CJ. & Fin. 44. ■ 6 M. & 8. 393. 3 19 C. B. N. S. 243, 115 E. C. L. ' L. K. 10 Q. B. 119. 6 19 C. B. N. S. 213, 115 E. C. L. 392 CASE AND ASSUMPSIT. for injury to Lis servant, a passenger on defendant's road, and consequent loss of services, averring that the defendant had contracted to carry the servant " for hire and reward to the defendant in this behalf;" the defendants demurred to the declaration, and also pleaded that they had contracted with the servant and not with the plaintiff. On demurrer the plea was held good, on the ground that a master can recover for loss of his servant's services only when caused by a pure wrong, but never when that wrong is, in substance, only a breach of contract. In F. & A. St. P. By. Co. v. Stutler, 1 a mother sued to recover for injuries to her minor son, a passenger on defendant's line, the injuries being caused by defendant's negligence. It was held, reversing the court below, and following Alton v. Mid- land By., that the plaintiff could not recover, the ground of decision being that only a party to the con- tract can recover for a breach of duty founded on that contract. 2 Where the ground of action is a pure tort, any one who has suffered a pecuniary loss directly resulting therefrom, may recover in case. 343. But where there is no contractual relation between the railway and the injured person, any one who, by reason of that injury, has suffered a pecuniary loss, may recover in case for a breach of the duty of the railway to carry safely any one whom they have re- ceived upon their line or premises ; thus, in Marshall v. Y., N. & B. By., 3 where the plaintiff, the valet of a nobleman, sued to recover damages for his luggage lost 1 54 Penna. St. 375. 2 Yet it has been held in Massachusetts that a master can recover in case for injuries to his servant while a passenger on defendant's line : Ames v. U. Ry., 117 Mass. 541. 3 11 C. B. 655, 73 E. C. L. CASE AND ASSUMPSIT. 393 on defendant's line, the plaintiff having been a passen- ger, but his ticket having been bought and paid for by his master, it was held that the plaintiff could recover, Jervis, C. J., saying, the action lies for the luggage, sued for as for personal injuries, " not by reason of any contract between him and the company, but by reason of a duty implied by law to carry him safely." So, in Berringer v. G. E. Ry., 1 the claim alleged that the plaintiff's servant took a ticket and travelled by the L. I. & S. Ry., and that the train on which the servant was a passenger came into collision with the defendant's train at a junction through the negligence of the defendant's employes, and that the servant was injured; and it was held on demurrer that the action being against independent wrongdoers, not parties to the contract of carriage, and for a pure tort, the plaintiff could recover. DISTINCTIONS IN PRACTICAL EFFECT BETWEEN THE AC- TIONS OF CASE AND ASSUMPSIT. When the plaintiff sues in assumpsit, he must at Ids peril join all of the parties with whom he contracted, he can recover for no tortious act that is not a breach of the contract declared upon, and his recovery therein is a bar to his subsequent action in another right upon the same contract; whereas when he sues in case, he may join, as de- fendants, any or all of those whose breach of duty injured him, he may recover all such damages as proximately result from the breach of duty, and his recovery in one right is no bar to his recovery in another right for the same injury. 344. When the plaintiff sues in case he may, at hia election, join as defendants any or all of the parties whose breach of duty has caused his injury, but where 1 4 C. P. D. 1G3. 30-1 CASE AND ASSUMPSIT. lie sues in assumpsit lie must, at his peril, sue all the parties to the contract. 1 Thus, in Ansell v. Water- house, 2 the plaintiff having averred in his narr that the defendant was the proprietor of a stage coach, who, as such, had received the plaintiff as a passenger under a duty to carry him safely, and that by the negligence of the defendant's servants, the plaintiff had been in- jured, and the defendant having pleaded in abatement that sixteen other named persons were co-partners, and should have been joined as defendants, upon general demurrer the plea was held bad, Bayley, J., saying : " There is a broad distinction in personal actions between tort and assumpsit, or such actions as arise ex contractu and ex delicto, which are founded upon contracts or upon wrongs independently of contract, and the proceedings vary accordingly. In assumpsit the plaintiff in his dec- laration and proof is confined to the very terms of the contract, and can recover in damages for no tortious act farther than it is a breach of the defendant's promise, express or implied. Whereas actions upon the case lie for the recovery of damages for consequential wrongs accruing from misfeasance or nonfeasance from the negligence or wilful conduct of the party, and in doing or omitting something contrary to the duty which the law casts upon him in the particular case." 345. Where the plaintiff sues in case he may recover for all damages naturally and necessarily arising, result- ing from the defendant's breach of duty to him, and against any one or more of the parties whose breach of duty has caused his injuries. 3 But when he sues in 1 McCall v. Forsyth, 4 W. & S. 179 ; Brotherton v. Wood, 3 Brod. & B. 54, 7 E. C. L.; Ansell v. Waterhouse, 6 M. & S. 385, 18 E. C. L. » 6 M. & S. 385, 18 E. C. L. 8 Tompkins v. Clay St. H. R. Co., Cal. , 18 Am. & Eng. R. R. Cas. 144 ; Stone v. Dickinson, 5 Allen 29; Churchill v. Holt, 127 Maps. 165; Bryant v. Bigelow Carpet Co., 131 Id. 491. JOINDER OF CLAIMS. 395 assumpit he can recover in damages for no tortious act further than that it is a breach of the defendant's promise, express or implied ; thus, in Murdock v. B. & A. R. R.., 1 the plaintiff was arrested by defendant's ser- vant for an alleged improper use of a ticket, and he sued the defendant in contract for breach of contract of safe carriage, and it was held, following Hobbs' case that the plaintiff could recover only for the natural and proximate consequences of the breach, and that to re- cover for mental and physical suffering following the arrest he should have sued in tort. Where assumpsit is brought and judgment recovered on a breach of a railway's contract of carriage, that judgment is a bar to another action in another right on the same contract ; thus, where a husband has sued and recovered in as- sumpsit for his wife's injuries caused by a railway's negligence in the performance of a contract of carriage of the wife, it was held that that judgment was a bar to a subsequent action of assumpsit brought by the husband to recover for loss of the wife's services and his expen- diture for her medical treatment. 2 IV. THE JOINDER OF COMMON LAW AND STATUTORY CLAIMS. Common law and statutory claims for damages may, under certain conditions, be joined. 346. Common law and statutory claims for damages may be joined in the same action, where they of the same nature, admit of the same pleas, and are followed by the same judgment. 3 1 133 Mass. 15, 6 Am. & Eng. R. R. Cas. 400. » Pollard v. N. J. R. & T. Co., 101 U. S. 223. » Martin v. Stille, 3 Whart. 337 ; P. R. R v. Bock, 93 Penna. St. 427. 396 PAYMENT INTO COURT. V. PAYMENT OF MONEY INTO COURT. The payment of money into court admits, under certain limitations, the cause of action. 347. Payment of money into court by the railway where the form of action is case, and the declaration general and unspecific, admits a cause of action, but not the cause of action sued for ; where the declaration is . specific, so that nothing would be due from the railway to the plaintiff, unless it admitted the particular claim made by the plaintiff, the payment into court necessarily admits the cause of action so averred in the declaration. Payment of money into court upon a general count on assumpsit admits only a cause of action to the amount paid into court, and operates as an admission for no other purpose. Payment of money into court upon a declaration on a special contract admits the contract and the breach. 1 1 Perren v. M. By. & C. Co., 11 C. B. 855, 73 E. C. L. ; Schreger v. Carden, Id 851. RIGHT OF ACTION FOR DEATH. 397 CHAPTER II. THE EIGHT OP ACTION FOR INJURIES CAUSING DEATH. I. The statutory right of action. II. The common law right. III. Terms of statutes conferring the right of action. I. THE STATUTORY RIGHT OF ACTION. At common law no action lies to recover damages for death, caused by a tort. 348. The rule of the common law is, as laid down by- Lord Ellenborough in Baker v. Bolton, 1 that " in a civil court the death of a human being cannot be complained of as an injury," and the maxim actio personalis moritur cum persona succinctly expresses the legal theory that a right of action for a tort, being personal, dies with the person injured, and that any action brought there- for abates at common law with the death of the plain- tiff. 2 The preamble to Lord Campbell's Act, 3 to be hereinafter referred to, recites that " no action is now maintainable against a person who by his wrongful acts may have caused the death of another person. In Os- born v. Gillett, 4 the plaintiff declared against the de- fendant for injuries to the plaintiff's daughter and servant, by reason whereof she afterwards died, claim- ing as special damages the loss of her services and her burial expenses; and the defendant having pleaded, inter alia, that the daughter " was killed upon the spot 1 1 Campb. 493. 2 Higgins v. Bucher, Yelv. 89; Eden v. L. & F. R. R., 14 B. Monr. 204; Carey v. B. Ry., 1 Gush. 475; Kramer v. S. F. M. St. R. R., 26 Oal. 484. • 9 & 10 Vict. c. 93. * L. R. 8 Ex. 88. 398 RIGHT OF ACTION FOR DEATH. by the acts and matters mentioned in the declaration, so that the plaintiff did not and could not sustain any damage which entitles him to sue in this action," judg- ment on demurrer was entered for the defendant by Kelly, C. B., and Pigott, B. [Bramwell, B., dissenting], upon the authority of Baker v. Bolton, and the legis- lative recognition of the principle of that case in the preamble to Lord Campbell's Act. So, in Pulling v. G. E. By., 1 Pulling having, by the negligence of the defendant, been injured at a level crossing, and after bringing suit having died, and his widow and adminis- tratrix having been substituted as plaintiff in the action, and by her statement claiming damages for loss of de- cedent's wages, medical expenses, and injury to his per- sonal estate, judgment upon demurrer was given for the defendant, upon the ground that the action being brought for a pure tort did not survive, but was abated by the death of the original plaintiff. 2 So, also, in Cregin v. B. C R. R., 3 it was held that "when a hus- band, having brought suit for injuries to the person of his wife, died, his right of action for the loss of his wife's society died with him, but his right of action for the loss of his wife's services and for his expenses for her medical treatment, being a pecuniary loss dimin- ishing his estate, survived to his personal representa- tives. The rule has also been applied where a widow sued to recover for the death of her husband, an engine- driver in a railway's service; 4 and where a husband sued for the death of his wife killed by the railway's negligence. 5 The same principle has been asserted in 1 9 Q. B. D. 110. s Cf. Twycross v. Grant, 4 C. P. D. 40. 8 83 N.Y. 595. * Hubgb. v. N. O. & C. R. R., 6 La. An. 495, 498 ; Herrmann v. Same, 11 Id. 5. 6 Green v. H. R. R. R, 2 Keyes (N.Y.) 294; Lucas v. N.Y. C. R. R., 21 Barb. (N.Y.) 245. BIGHT OF ACTION FOR DEATH. 399 actions brought by life assurance companies to recover from persons, natural or corporate, by whose wilful or negligent acts assured persons were killed and the as- surance companies thereby compelled to make payment of the amounts assured on the lives of such persons. Thus, in Mobile Life Insurance Co. v. Brame, 1 Brame having wilfully killed McLemore, upon whose life policies of assurance had been issued by the corpora- tion plaintiff, payment of which had been made after McLemore's death, the plaintiff sued Brame for the amounts of those policies, as damages caused to it by Brame's act. The cause was heard in the United States Circuit Court for the District of Louisiana upon the defendant's exception to the plaintiff's petition, and judgment having been rendered thereon for the de- fendant, was affirmed in error in the Supreme Court of the United States, upon the ground that the relation between the plaintiff and the assured was created by a contract to which the defendant was not a party, and that the damage to the plaintiff in being compelled to make good its contract with the assured was not a ne- cessary or proximate result of the wrong done by the defendant in killing the assured. In Connecticut Mutual Life Insurance Co. v. N. Y. & N. H. R R., 2 the same rule was applied where the plaintiff sought to recover for the killing of its assured by negligence on the part of the railway. II. THE COMMON LAW RIGHT. But where the death is caused by a breach of contract, an action lies at common law to recover damages for the loss to the decedent's estate directly resulting from that breach of contract. 349. But, of course, a different rule applies where the injury, although from one point of view a tort, is from 1 95 U. S. 754. ' 25 Co™- 265 ' 400 EIGIIT OF ACTION FOR DEATH. another point of view a breach of contract, and it has been held that in such cases the right of action survives to the personal representatives. This rule has been extended to permit recoveries by the executors of pas- sengers injured by a railway's breach of its contract of carriage. In Knight v. Quarles, 1 an administrator hav- ing brought assumpsit, and averred in his narr that the defendant, for certain fees to be paid him, undertook, as an attorney, to examine a title for the plaintiff's intes- tate, and that he omitted to do so, and that the intes- tate in consequence took an insufficient title, whereby his personal estate was injured, judgment on demurrer was entered for the plaintiff, and Richardson, J., said : " if a man contracted for a safe conveyance by coach, and sustained an injury by a fall, by which his means of improving his personal property was destroyed, and that property in consequence was injured, though it was clear he in his lifetime might, at his election, sue the coach proprietor in contract, or in tort, it could not be doubted that his executor might sue in assumpsit for the consequences of the coach proprietor's breach of contract." Willes, J., in his judgment in Alton v. Mid- land Ry., 2 said, referring to Knights v. Quarles : " sup- pose the personal estate of a servant sustained injury through the defendant's breach of duty, as if he had taken a quantity of luggage with him which had been lost, or damaged, it is clear his executor could have sued for that damage." In Potter v. M. Ry., 3 a wife having been injured, while a passenger, by the defendant's neg- ligence, and her husband having died, sued as his ad- ministratrix to recover for her husband's loss in respect of the injuries to her, and it was held in the Exchequer Chamber that the right of action being founded on a 1 2 Brod. & B. 102, 6 E. C. L. » 19 C. B. N. S. 245, 115 E. C. L. • 30 L. T. N. S. 765, 32 Id. 36. EIGHT OF ACTION FOE DEATH. 401 breach of contract survived to the husband's personal representative. In Bradshaw v. L. & Y. By., 1 where a passenger, having been injured in a railway accident, died in consequence of his injuries, but after an interval, it was held that his executrix could recover in an action on the contract for the damage suffered by the dece- dent's estate by reason of the breach of the defendant's contract to carry him with reasonable safety, the ground of the decision being that the damage was not caused by the decedent's death, but by his inability to attend to his business during his lifetime, that inability resulting from the accident. Bradshaw's case was followed as an authority, but with apparent reluctance, in Leggott v. G. N. By., 2 where the plaintiff, having sued to recover under Lord Campbell's Act as the administratrix of her deceased husband, again brought suit to recover for in- jury done to his personal estate by reason of his inabil- ity to attend to business from the date of the accident to the date of his death, and it was held that the re- covery in the first action was no bar to a recovery in the second, the causes of action being different, and that as the plaintiff sued in the two actions in different rights, the pleadings in the first action, and the verdict for the plaintiff therein, did not estop the defendant from deny- ing, in the second action, the cause and the circum- stances of the injury. 3 The right of action in suits to recover damages for death earned by a tort is, therefore, statutory. 350. Therefore, for want of a common law remedy, statutes vesting in certain designated persons a right of action for injuries resulting from death by negligence have been passed in different jurisdictions, and in the 1 L. E. 10. C. P. 189. '1 Q- B. D.699. 8 See also Cregin v. B. C. E. E., 83 N. Y. 595. 26 402 STATUTES VESTING THE EIGHT. case of a death, caused in any jurisdiction by a railway's breach of duty, the terms of the statute in force in the particular jurisdiction must be looked to in order to determine the right to sue, the form of action, the parties plaintiff and defendant, the conditions of lia- bility, and the measure of damages. III. STATUTES CONFEEEING A EIGHT OF ACTION FOE DEATH. 351. The first of these statutes was enacted in Eng- land in 1846, 1 and is known as Lord Campbell's Act. It recites in its preamble that, " whereas no action at law is now maintainable against a person who, by his wrongful act, neglect, or default, may have caused the death of another person, and it is oftentimes right and expedient that the wrongdoer in such a case should be answerable in damages for the injuries so caused by him," and it enacts that whensoever the death of a person shall be caused by such act, neglect, or default, "as would, if death had not ensued, have entitled the party to maintain an action to recover damages in respect there- of," then the person who would have been liable if death had not ensued shall, notwithstanding the death of the person injured, be liable in damages at the suit of the personal representative for the benefit of the wife, husband, parent, and child of the deceased. The act further authorizes the jury to "give such damages as they may think proportioned to the injuries resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought, the damages to be apportioned among the beneficiaries as the jury shall direct. The act also provides that not more than one action shall lie for and in respect of the same subject-matter complained of. A later act 2 pro- 1 9 & 10 Vict. c. 94. * 27 & 28 Vict. c. 95. STATUTES VESTING THE EIGHT. 403 vides that if there be no personal representative any one of the beneficiaries may bring the action. Lord Camp- bell's Act has been followed in the statutes now in force in Canada ; and in the states of the United States, stat- utes of like effect have been enacted, references to, and the material provisions of which are given in the follow- ing table : 404 STATUTES. 2 ==3 si ta -5 § ^2fcS i5"2*°a go cfl * ~ S" . S » o5 eg o o O 3 ^Ot3 ■"js «> g 2 I'd --2 a a h ; S a) ^2 -a O O 0J Pig o <*.& 2 <- _ O p < . a) +»3 2-dS £ 3 ~"-Q 3 o -2 a) a) 5 '3 SsS ° R mpensa the pec e wife all the e just. o o P ~A ^ ^■^ o >> .do 8g nd jus rence ies to in. i, und es, ma =as^3« A fair with re ary inj next oi' Such cumstai ^8 i^ o a fcg 53 oj S" £ d lis - C ■£ o 3 £ ^ 0), d "3 g 3 j 9 K&° d 5* .s; isSis.SSS.Sfca 5 |J -a; .2 '■■~ (3 ^"3 5 8 c d c S •di ese-s a • ^ ^ (3 2 ii 9. <» ,3 T3 p. u pp. ©S8S s« - o> .§5; . p.^- t- 1> a> 'gg , «§ 10 -sS 15 .CM a^" POi-1^ -c-i oo ^ m i- i cj ao -; oc ?D I If Tj" PtH iH STATUTES. 405 £0 . o c3 £. = S £ £ 5 ♦"do? - ~ o 3.5 «3o £. -•-=•_ o *d O .■«_• — --* h d d • ; 53 .9 «* .5 x - =a 9> *? O* 1 - > o o .y ■r-'-Sd o w C "£ •_ 3 ED 3 3 o & "™ ^ — . O m 5 r T>iS3<0 , dO'-)< • -J b§2r~-~d S- ~ 333 f* O'd > -1 O O O > ja 1- O d "- i~ Cv— 3 «B Q t3 ~ — — ~ to o£ ?-d oc 5h,s 43*3*0, o a3 £53 o = G KS x o/d s <| i * || ■2 O J> O _• m $ g&g -8. "3 — 7 > o ^ ft a = - od d-a o o k a j3 t, j- o a ™ <5 ii o-g o'H o 53J, 5 33 2 . 2 3 z.-- q 3 -^ a j a so, ^ 5 £ h gag 5 s p,aa«« O <3 p~". luOu ' § ..1 a~s o * J bJI-S t^ w*d ® s-d o— • o o s ^ G B o S -0^9 £ S B t >=s >> d Ml* .3 pa °.2o III ¥ A =3 MOO .d 5,5 c. ->- ♦* <-■ o-d~ ^ -5=d£ /T-_ • C fto 2 1|| u h =* ° 3 Pi B > H m - i Ci . E A cS *Z r % gco - i - 5" 0.-1 C, 1-1 CI - M B.4H PL,-.-* w w 406 STATUTES. u O e3 !»2 ,o a a; ,0X1 PL| ^a W 3 a O -U X -t-- 43 £ — ft >. , ST o - y, --5 2 • ■ a « * > c_ ,"d a g i 1 «.§S 2 a 9 oo o» o >. a — as a > ri a d# H o a X z> £ OJ3..22 cu-d a o Ph •°a so a 'sr« SUSP'S* ^-3-a^-^ :--^ . o -d 3 a * « &■ * £Sa "CO a a; -j 2=2 *■ "■g.s-3 tiTs ». a ^ti a : C <" a u - ^ t<^>^.a, aa a a ~ 3 S .2 « J *2 QJ ~ *5 ©is oj • © a - »-3-a Ml 1 " o 0J r fto5 8 2d? 5 !gV2.s ■.- s^ ° i B " o 5? : . °~3 a a » tao S.23.9 cs p,a H t->?-a +j 5- ^ o «§a.2 oj^pi fa- a 3 a -j-j =3 .a i p^3 ■sSfa .C,a> O-^ a a c.a a .a a- >a zj g O.S O o 2 gaS 55 rt o^,^w a so *; s.S jj;«o^s?S a o t„ — a a «« ©" C3J2 ~~ v.-? c£.£<8 B S„t, ■n a s342 ,_ a g . a *^ -„- Cfl. 1 •C si " " • h ~ 3 ■ M a K~ a "3 to Sh a a a ■£T3 "2 a ^2" be distributed y without liabi 'Books v. Danv Mann v. Wie >f Cases (Pen i p, 12 Id. 47 ; C , GG Penna. St. *^ o ry to testae See t. 158 Notes towan 4> Bo-3 •c 0;3 •»• e o n D C2 a -a-2-^S S a? <* a oa q;%h £ r"^ * OB'S 42 H-O 2 a 3=j a c ^h c c-o ~ a a a 42 £5=5.^i Sffi'u 5 §J sg §11 a — .. O m p, m aau 8 2 S 2-2 c'S 5 a. O 3 a m f»> .2.;^. gf's./ P 5" a-c rr-« s3 ™ P«0S ■"■ ~ W ^ •Strf <=" a .3 id. a . _ -§ ft *s ; "O > >3 - . a: a 5 -S8 1 P* r/ 3 ^43 C i a a '■2 S" >t3 .2,3 S ;2 g » _ 3 2 « o a S u xl "S «3 a) +3 >. .- Q 43 a"" -"■■= s?a S'a >S c a 5 f3 O <2 ' £ I" •s >» « •g 3: ! "2 a "?3 ,- = = >. s j_ a « a a «— *- t- u 5 M 43 a >. - H = O S3 — s3 C C a H c — 'O '• — -ra *o c t; 1- S2 . 5c 2£S£ 'il-! a -, t. rf in gSnt 3^ «3 ^j ^^jg p^ .a :j3 42 a S-4 s^ - 5 24 408 STATUTES. B S* E S" co - — ^> c„ fli ,a oj a C >. =3 ~ 0) -S cf ,3 H-^^-0 OJ 5J^s^ ft o w r 10 or a 03 tu ?afl!i c3.Q a O o d 1 S * 0: 3 « 3 ° „ oft ^ oS "* a £ oj o 03 « go> *£ « 8Si? a -qc > a 0.5 h =3 Pife4 CO 03 «^CJ.~ . jH O c3o ■d £ sa .2 A S 1 "! CD « Code 96, as a LCt of 878. ao 2«*> CO P. C. ~*it-H ^ f the injury to the plaintiff. 359. Where the acts of an agent or servant will bind the railway, there the representations, declarations, and 416 DECLARATIONS. admissions of such agent or servant respecting the subject-matter will also bind the railway, if made at the time of the injury to the j)laintiff, and constituting part of the res gestce} But declarations of the agent or servant of the railway, if made subsequently to the time of the injury to the plaintiff, are not part of the res gestce and are not admissible in evidence against the railway. 2 Yet declarations of a servant are admissible when proven to have been made in the course of duty, as, for instance, a report by an engine-driver to a switch- tender that he had run over a man, it being the engine- driver's duty to report to the switch- tender, that the latter might hold other trains until the obstruction was removed, but declarations of the engine-driver of the manner of killing and the identity of the person killed are not admissible. 3 Declarations of an alleged servant of the railway are not admissible against the railway to 1 Story on Agency, § 134 ; H. E. E. v. Coyle, 55 Penna. St. 396 ; Mullan v. P. & S. M. S. Co., 78 Id. 25 ; McLeod v. Ginther, 80 Ky. 399, 15 Am & Eng. E. E. Cas. 291, 8 Id. 162; Casey v. N.Y. C. & H. E. E. E., 78 N.Y. 518; Penna. Co. v. Eudel, 100 111. 603, 6 Am. & Eng. E. E. Cas. 30. 2 V. Packet Co. v. Clough, 20 Wall. 529 ; M. & M. E. E. v. Finney, 10 Wise. 388 ; P., C. & St. L. E. E. v. Wright, 80 Ind. 182, 5 Am. & Eng. E. E. Cas. 628 ; Moore v. C, St. L. & N. O. E. E., 59 Miss. 243, 9 Am. & Eng. E. E. Cas. 401 ; M. C. E. E. v. Coleman, 28 Mich. 440 ; Treadway v. S. C. & St. P. Ey., 40 Iowa 526; C. & N.W. Ey. v. Fillmore, 57 111. 265; Furst v. S. A. E. E., 72 N. Y. 542 ; P., C. & St. L. E. E. v. Theobald, 51 Ind. 246 ; Dietrich v. B. & H. S. Ey., 58 Md. 347, 11 Am. & Eng. R. E. Cas. 115; Verry v. B., C, E. & M. Ey., 47 Iowa 549 ; Newsom v. G. E. E., 66 Ga. 57 ; E. T. V. & G. E. E. v. Duggan, 51 Id. 212; Travis v. L. & N. E. E, 9 Lea (Tenn.) 231 ; Tanner v. L. & N. E. E., 60 Ala. 621 ; McComb v. N. C. E. E., 70 N. C. 178 ; Adams v. H. & St. J. E. E., 74 Mo. 553, 7 Am. & Eng. E. E. Cas. 414 ; Luby v. H. E. E. E., 17 N.Y. 131 ; Hamilton v. N. Y. C. E. R., 51 Id. 100; Whitaker v. E. A. E. E., Id. 295 ; Marsh v. S. C. E. E., 56 Ga. 274 ; Patterson v. W., St. L. & P. Ey., 54 Mich. 91, 18 Am. & Eng. E. E. Cas. 130; A. G. S. Ey. v. Hawk, 72 Ala. 121, 18 Am. & Eng. E. E. Cas. 194; McDermott v. H. & St. J. Ey., 73 Mo. 516, 2 Am. & Eng. E. E. Cas. 85. 3 B. & O. E. E. v. State, to use of Allison, 62 Md. 479, 19 Am. & Eng. E. E. Cas. 83. DECLARATIONS. 417 prove that the person making the declaration was a servant of the railway. 1 II. ADMISSIBILITY FOR THE PLAINTIFF OF PROOF OF DECLARATIONS OF THE PERSON INJURED. Such declarations are admissible or the plaintiff if part of the res gestoz and made contemporaneously with the happening of the injury, but they are not in any case admissible as " dying declarations," and exclamations of the person injured, indicating pain and suffer- ing, though made subsequently to the injury, are admissible in evi- dence for the plaintiff. 360. It has been held that declarations of persons injured, as to the cause of the injury, are admissible in evidence for the plaintiff as part of the res gestce, if the declarations were made at the time of the accident. 2 It has also been held that declarations and expressions of the injured person, indicating pain and suffering, are admissible in evidence for the plaintiff as part of the ■res gestce, although made at a time subsequent to the happening of the injury; 3 and where the plaintiff sued for an injury done to his leg, a piece of bone was admitted in evidence with proof of the plaintiff's decla- ration made subsequently to the injury, that it had just come out of his leg. 4 But such declarations and excla- mations, if made at a medical examination which was undertaken for the purpose of obtaining testimony to be used on behalf of the plaintiff at the trial, are not admissible. 5 Declarations of the person injured, .is (<> 1 Lindsay v. C. R. R , 40 Ga. 447. 2 Entwistle v. Fergner, 60 Mo. 214; Bass v. C. & X. W, Ry., 12 Wise. 664 ; Brownell v. P. R. R., 47 Mo. 240 ; Friedman v. R. K., 7 Phila. 208. 3 H.&T.C.R. R. r.Shafer, 54 Tex. 641, 6 Inn. & Eng. R. I:. Can. 421; Avesoni). Lord Kiimard, 6 Eaal L88; Sfattesonv. N. V. C. !•'. R., :;"■ N. V. 487; Perkins v. C. R. R., 44 X. II. 223; Hagenlocker v. C. I. A l;. R. I;., 99 N.Y.I. 30. * Pringle v. C, R. I. & P. Ry., 01 In,va C,i:;, IS Am. .V Km-. R. R. Cas. 01. 5 G. R. & I. R. R. v. Huntley, 38 Mich. 537. 27 418 DECLARATIONS. fche cause of his injury, when made after the happening of the injury, and constituting merely a narrative of a past transaction, are not part of the res gestae, and are not admissible in evidence for the plaintiff. 1 Despite the authorities which have been cited, it may well be doubted whether the declarations of the person injured, if made subsequently to the injury, are, in any case, properly admissible for the plaintiff, for they are not admissions against interest, nor are they part of the res cjestm, in the sense that they are contemporaneous explanations of any act done on the part of the plain- tiff. 361 Dying declarations are admissible only in criminal prosecutions, 2 and, of course, are not admissi- ble in civil actions against railways for injuries causing death. 3 III. THE ADMISSIBILITY IN EVIDENCE FOR THE RAIL- WAY OF THE PROOF OF ADMISSIONS AND DECLARA- TIONS BY THE PERSON INJURED. Such declarations, at whatever time made, are admissible in evidence for the railway. 362. Declarations and admissions of the person in- jured, at whatsoever time made, are admissible in evi- dence for the railway, as admissions against interest, and where the plaintiff is not the person injured, they are binding upon the plaintiff by reason of his privity with the person injured. 4 But the declarations of one 1 Waldele v. N. Y. C. & H. R. R. R., 95 N. Y. 275, 19 Am. & Eng. R, R. Cas. 400 ; C, C. & 0. R. R. v. Mara, 26 Ohio St. 185 ; I. C. R. R. v. Sutton, 42 111. 438; Taylor v. G. T. R. R., 48 N. II. 304. 2 Stephen's Digest of the Law of Evidence 32. ■ Marshall v. C. & G. E. R. R., 48 111. 475 ; Daily v. N. Y. & N. H. R. R., 32 Conn. 356 ; Waldele v. N. Y. C. & H. R. R. R., 26 Hun. (N. Y.) 69. 4 Stein v. G. A. Ry., 10 Phila. 440 ; Cooper v. C. R. R., 44 Iowa 134 ; sed. cf. O. & M. R. R. v. Hammersley, 28 Ind. 371. OVERWORKED SERVANTS. 419 who is neither the person injured, nor the plaintiff, nor the plaintiff's agent, are not admissible in evidence for the railway ; thus, where a wife sues in her own right for her personal injuries, the subsequent declarations of her husband as to the cause of the injury are not admissible in evidence against her ; l nor are the declarations of a wife as to the cause of the injury admissible in evidence as against her husband, the plaintiff. 2 The non-performance of a duty by a railway servant may be proved by direct evidence of the fact, or indirectly by evidence that the railway servant was, at the time of the injury, incapacitated by intoxication or otherwise, but it cannot be proved by showing that the servants of the railway are habitually overworked. 363. Evidence is admissible to prove that a railway servant who was charged with the performance of a par- ticular duty at a particular time, and whose non-perform- ance of that duty was the cause of the injury for which the plaintiff sues, did not perform that duty by reason of his absence from his post, or because he was then inca- pacitated by drunkenness, or otherwise; but evidence is not admissible to prove that servants of the railway, who are charged with the performance of such duties, are so habitually overworked that they are not compe- tent for the performance of their duties, for such evi- dence is, at best, only a presumption founded upon a presumption. 3 1 Keller v. S. C. & St. P. R. R., 27 Minn. 178. 2 Stillwell v. N. Y. C. R. R., 34 N. Y. 29. 8 P. C. P. Ry. v. Henrice, 92 Penna. St. 431, 4 Am. & Eng. R. R. Cas. 544. 420 COLLATERAL OCCURRENCES. IV. ADMISSIBILITY OF PROOF OF COLLATERAL OCCUR- RENCES. "The occurrence of facts similar to, but not connected with, the fact in issue by the relation of cause and effect, is not admissible in evidence." 364. The general rule is that quoted in the head note, from Mr. Justice Stephen; 1 thus, the charge of negligence against the railway being based on the main- tenance of an imperfect switch and the failure to repair a broken rail, evidence of other defects at other points on the line is not admissible. 2 So, in an action for in- juries to a passenger evidence is not admissible of another accident at the same place under similar cir- cumstances/' There are, however, some cases which maintain a different doctrine ; thus, the question at issue being whether signals were given at a particular crossing by a particular train, it has been held that evi- dence is admissible to show that such signals were not given by that train at another crossing. 4 It has also been held that evidence is admissible to show that en- gines of the defendant habitually pass a certain crossing at great speed, as tending to prove that on a particular occasion another engine did pass the crossing at great speed. 5 The negligence charged upon the railway being a failure to maintain its line in a safe condition for the transportation of passengers, evidence has been held to be admissible of recent and frequent derailments of its trains. 6 In such a case, evidence has also been held to 1 Digest of Evidence, cap. Ill, p. 15. 2 Morse v. M. & St. L. Ry., 30 Minn. 465, 11 Am. & Eng. R. R. Cas. 168; P., C. & St. L. Ry. v. Williams, 74 Ind. 462, 3 Am. & Eng. R. R. Cas. 457 ; Reed v. N. Y. C. E. R,, 45 N. Y. 574. 3 Davis v. O. & C. R. R., 8 Oregon 172 ; O, B. & Q. R. R. v. Lee, 60 111. 501. * Bower v. C, M. & St. P. It. 11., 61 Wise. 457, 19 Am. & Eng. R. R. Cas, 301. > Bhaber v. St. P., M. & M. R. R., 28 Minn. 103, 2 Am. & Eng. R. R. Cas. 185. 6 M. & M. R. R. v. Ashcroft, 48 Ala. 15, 49 Id, 305. SIMILAR ACCIDENTS. 421 be admissible as to the unsafe condition of the line at points other than that where the injury happened. 1 The doctrine of those cases is more than questionable. The existence of negligence upon the part of the railway at a different place, or at the same place upon another occasion, is not necessarily inconsistent with the exercise of due care on the part of the railway at the time and place of the injury, and the introduction of proof of such collateral occurrences necessarily raises for deter- mination by the jury distinct issues, whose consideration has an obvious tendency to divert their minds from the issues raised by the pleadings in the cause. Of course, this rule does not exclude the evidence of occurrences, which are not collateral to the plaintiff's injury ; thus, where the plaintiff sues for injuries resulting from the fright of a horse caused by some particular noise, evi- dence that other horses were frightened at that time by the same noise is admissible, for it tends to prove the dangerous character of the noise. 2 So, where the case turns on the sufficiency or insufficiency of a particular appliance, such as a switch, evidence is admissible of other accidents caused by switches similarly constructed, because it tends to prove the insufficiency of the par- ticular form of switch. 3 Proof as to changes in the construction or mode of operation of the railway, made subsequently to the happening of the injury to the plaintiff, is not admissible. 365. Evidence is not admissible to prove thai after an accident, a railway made changes in the construction of its line, or adopted a different mode of operation, as, 1 Allison v. V, A X. W. Ry., 42 [owa 27 I ; Holyoke v. ' ■. T. K. K., 48 N. B. 541; Reed v. N. Y. C. R. R., 56 Barb. 493. 2 Gordon v B. & M. K. R, 58 X. II. 396. 3 Morse v. M. & St. L. Ry., 'M Minn. 465, 11 Am. & Eng. R. R. I !u. 168. 422 SUBSEQUENT CHANGES. substituting new for old planks at a level crossing, 1 or substituting a new bridge for the old bridge, the prox- imity of whose sides to the line was the cause of injury to the plaintiff', 2 or changing the character of a switch, 3 or reconstructing an embankment after a storm of un- precedented violence; 4 or putting in new ties after an accident. 5 On the other hand, it has been held that evidence is admissible to show that after an accident at a crossing certain precautions were taken to prevent similar accidents; 6 or that where the injury to the plaintiff had resulted from the removal of a plank at a crossing, the railway had, after the happening of the injury, replaced the plank in position; 7 or that where the injury was caused by the proximity of a station plat- form to a main line track, the railway, after the injury to the plaintiff, relocated its platform; 8 or that where the cause of injury to the plaintiff was the proximity of a main line track to a coal scales, the railway after the injury to the plaintiff had changed their relative loca- tion. 9 On principle, it is not easy to see why such evi- dence should be regarded as admissible. A change in a mode of operating the line, or a substitution of a different appliance at a particular point, is not necessarily an admission that the discarded mode of operation or appliance was dangerously defective, for, in railway practice, such changes are frequently made from motives 1 Payne v. T. & B. R. R., 9 Hun (N. Y.) 526. 2 Dale v. D., L. & W. 11. R., 73 N. Y. 468. 3 Salter v. D. & II. C. Co., 3 Hun (N. Y.J 338 ; Morse v. M. & St. L. Ry., 30 Minn. 465, 11 Am. & Eng. R. R. Cas. 168. 4 Ely v. St. L , K. C. & N. Ry., 77 Mo. 34, 16 Am. & Eng.' R. R. Cas. 342. 8 Reed v. N. Y. C. R. R., 45 N. Y. 574. 6 Shaber v. St. P., M. & M. Ry., 28 Minn. 103. 2 Am & Eng. R. R. Cas. 185 ; O'Leary v. Mankato, 21 Minn 65; Phelps v. Mankato, 23 Minn. 276. 7 Kelly v. S. M. R. R., 28 Minn. 98, 6 Am & Eng, R. R. Cas. 264. 8 P. R. R. v. Henderson, 51 Penna. St. 315. 9 W. C & P. R. R. v. McElwee, 67 Penna. St. 311 ; see also McKee v. Bid- well, 74 Id. 218. PROOF OF SUBORNATION. 423 of economy, or from the desire of obtaining greater efficiency without increased cost. The introduction of such evidence is also open to the objection, that it raises distinct and independent issues for the consider- ation of the jury. Proof is admissible of an attempt to suborn false testimony , as constitut- ing an admission that the case of the party so attempting is not well founded. 366. Evidence is admissible to prove that the plaintiff, or the defendant, or the agent of either of them, endea- voured to suborn false testimony to be adduced in the cause ; x and, in Moriarity v. L. C. & D. Ry., Cockburn, C. J., states, as the reason of this rule, that " the conduct of a party to a cause may be of the highest importance in determining whether the cause of action in which he is plaintiff, or the ground of defence if he is defendant, is honest and just ; just as it is evidence against a pris- oner that he has said one thing at one time and another at another, as showing that the recourse to falsehood tends fairly to an inference of guilt. Anything from which such an inference can be drawn is cogent and important evidence with a view to the issue. So, if you can show that a plaintiff has been suborning false testi- mony, and has endeavoured to have recourse to perjury, it is strong evidence that he knew perfectly well his cause was an unrighteous one. I do not Bay that it is conclusive. I fully agree that it should be pul to I In- jury, with the intimation that it docs ool always follow because a man, not sure he shall be able to succeed by righteous means, has recourse to means of a different character, that that which he desires, namely, the gain- 1 Annesley v. Earl of Anglesey 17 How. St. Tr. 1138 ; Moriarity 9. I D. Ry., L. R. 5 Q. B. 314 ; C. C. Ry. v. McMahon, LOS IN. 486,8 km. & R. E. Cas. G8; March v. S. C. K. B., 66 (la. 274. 424 INSPECTION OF INJURIES. ing of the victory, is not his due, or that he has not good ground for believing that justice entitles him to it. It does not necessarily follow that he has not a good cause of action, any more than a prisoner's making a false statement to increase his appearance of innocence is necessarily a proof of his guilt; but it is always evi- dence which ous;ht to be submitted to the tribunal which has to judge of the facts." V. INSPECTION OF THE INJURIES OF THE PERSON INJURED. The person injured is entitled to exhibit his personal injuries to the jury, and the court, in its discretion, may direct the person injured to submit to a physical examination by medical men appointed by the court. 367. The person injured may exhibit his injuries to the jury. 1 Where, in its opinion, the interests of justice justify it, the Court may require the injured person to submit to an examination by competent and disinter- ested experts on behalf of the railway. 2 So also the Court may, in its discretion, direct the person injured to perform, in the presence of the jury, a physical act which will necessarily test the nature and character of his physical injuries. 3 VI. SPEED OF TRAINS. Any witness who saw the train in motion at the place of the injury may testify as to its speed, hit unless he fixes its speed by some reli- able data, his testimony will be of little weight. 3G8. Any person who saw a train in motion at any time, and at any place, is a competent witness to testify 1 Mulhade v. B. C. R. R., 30 N. Y. 370. 2 Walsh v. Sayre, 52 How. Pr. 334 ; Schroeder v. C, R. I. & P. Ry., 47 Iowa 37.". ; A., T. & 8. F. Ry. v. Thul, 29 Kan. 466, 10 Am. & Eng. R. R. Cas. 378 ; S. C. & P. Ry. v. Finlayson, 16 Neb. 578, 18 Am. & Eng. R. R. Cas. 68; While i. M. C. R. R., 61 Wise. 536, 18 Am. & Eng. R. R. Cas. 213; Loyd v. H. & St. J. R. R., 53 Mo. 509. 3 Hatfield v. St. P. & D. Ry., 33 Minn. 130, 18 Am. & Eng. R. R. Cas. 292. PROOF OF SPEED. 425 as to the speed of that train at that time and place ; x but unless the witness is experienced in observing the movements of trains, and unless he observes the time occupied by the movement of the train over a definite space, his testimony will not furnish a reliable basis for a determination of the actual rate of speed of the train. As Lyon, J., said in Hoppe v. C. M. & St. P. Ry. : 2 " the estimate of a witness, especially of a non-expert, of the rate of speed of a moving railway train is very unsatis- factory proof, and should be received with great caution. If the res gestce render it impossible, or even highly im- probable, that the estimate can be, or is, correct, it should be rejected." In Tully v. F. R. R., 3 Colburn, J., said : "the only evidence as to the rate of speed of the train was the testimony of one witness, who saw the train stop, that it stopped forty or fifty yards from the crossing ; and of another that he noticed that the train, after it had stopped, was about three hundred yards from the place of the accident. We are of the opinion that no inference could be drawn from this evidence, that the train passed the crossing at an unreasonable rate of speed. How soon the train would have stopped de- pended upon the state of the track and the weight of the train, upon the kind of brakes used, whether to be up- plied by the engineer or by men along the train, and, ir the latter, how quickly the men responded to the signal, and upon how promptly after the accident the engineer applied the brakes, or gave the signal, and how e he discovered the accident, and upon these points there was no evidence whatever. Neither was there any evidence of how soon a given train, al a given rate of 1 D. & M. R. R. v. Van Bteinbnrg, 17 Mich. 99; <'., B. & Q. EL Et. ■ John- son, 103 111. r >12, 8 Am. & Eng. B. B. Ca& 226. 2 61 Wise. 357, L9 Am. & Eng. B. B. Cas. 74. 8 134 Mass. 499, 21 Am. & Eng. R. R. Cas. (;>!.». 426 OMISSION OF SIGNALS. speed, could be stopped, under any given circumstances, and this cannot be considered a matter of common knowledge." On the other hand, in Penna. Coal Co. v. Conlan, 1 witnesses were permitted to testify as to the speed of a train without reference to any standard of speed, and testimony was also admitted to show the dis- tance run by the train after striking a person, without showing any of the circumstances regarded as material in the Tully case. In Van Horn v. B. C. K. & N. Ey., 2 non-expert witnesses were allowed to testify " that they judged from the sound of the train that at the time of the accident it was running very rapidly, and more than six miles an hour, which it appears was the high- est speed allowed by ordinance of the city ;" and such testimony was held sufficient to justify a finding of negligence against the railway. One case 3 goes so far as to hold that only experts can testify as to the time and distance within which a moving train can be brought to a stop. In G. R. & I. R. R. v. Huntley, 4 it is held that evidence as to the speed of a train should show the actual rate by reference to some standard of rapidity, and should show that that rate was dangerous under the circumstances, and that the mere opinion of • a passenger is not satisfactory proof of the speed of a train. VII. SIGNALS. Tlie credibility and effect of testimony, that signals were or were not given, is for the jury ; but they should be directed by the judge as to the relative weight of the testimony. 369. The testimony of witnesses that signals were given is of higher grade than testimony that they were 1 101 111. 93, G Am. & Eng. R. R. Cas. 243. » 59 Iowa 33, 7 Am. & Eng. R, E. Cas. 591. 3 M., A. & B. Ry. v. Stewart, 30 Kans. 226, 13 Am. & Eng R. R. Cas. 503. * 38 Mich. 539. OMISSION OF SIGNALS. 427 not given, and the testimony of witnesses who were listening for the signals is of higher grade than the testimony of witnesses who were not listening for them, but the credibility and effect of all such testimony is for the jury; 1 thus, in Greany v. L. I. R. E,., 2 where the railway was held liable to a traveller on the high- way, who was injured, at a grade crossing in a village close to the railway station, by a train which was run- ning at high speed, passengers on the train having tes- tified that the crossing signals were not given, Dan- forth, J., said, as to the evidence that the signals were omitted : " it is apparent that the best evidence of the fact in dispute would be the testimony of those persons who, on the particular occasion in question, had the custody or management of the bell or whistle. They were, however, in the employ of the defendant, them- selves interested in proving that the proper signals were given by those instruments, and the law does not require an adverse party to put his case in the hands of persons having such relations to the transaction. Besides those persons, all others must give evidence secondary in character. One person might be watching the bell, looking at it, or listening for its sound ; the value of his testimony would depend upon his nearness to the machine, the accuracy of his sense of sight or hearing, the existence, or force, or direction of the wind, and other causes. Another person might be neither look Lng nor listening, and yet his position be such, and the cir- 1 D., W. & W. Ry. v. Slattery, 3 App. Caa. 1155 ; Longenecker P.P. B K.. 105 Penna. St. 328 ; C, B. & Q. R. E. v. Slumps, 55 III. 367 ; C. & A. K. B. v. Gretzner, 40 Id. 74; C.,B.& Q. R. R. ■. Dickson, 88 I.I. 431 ; C. & A. B K. ,-. Robinson, 106 Id. 142, 19 Am. & Eng. B. B. Caa. 396; 0., B. & Q. B Dougherty, 110 Id. 521; Culhane v. N. Y. C. & H. B B B, 80 N.Y. 133; Klanowski v. G. T. Ry, Mich. , 21 Am. A Eng. B B Caa. 648; Bhoade. v. C.&G.T. Ry, Mich. , 21 Am.<& Eng. B B. Caa 659; Buntn P. R. R, 14 Ney. 351, 6 ^Vm. & Eng. R. B. I !aa. 282. 2 101 N.Y. 419. 428 OMISSION OF SIGNALS. cumstances about him so favourable, that his testimony would be of equal or greater persuasive power than that of the other. A jury must ascertain. An appel- late court cannot say that the testimony of either should be rejected. Nor should a trial judge be required to determine its weight, or the fact which it did or did not ascertain, if it has any legal effect. No error, there- fore, was committed in allowing the witnesses, K., T., and R., to testify. They were passengers upon the train causing the injury, and were in such position that it would not have been impossible for them to have heard the signal if it had been given." But in Ellis v. G. W. By., 1 it was held in the Court of Exchequer Chamber (Cockburn, C. J., dissenting), that testimony for the plaintiff that the plaintiff did not see the lights of an approaching train, nor hear its signals, is equally consistent with two different states of facts, viz. : that the train was not lit and the signals were not given, or that the train having been lit and the signals having been given, the witness failed to observe either the lights or the signals ; and that for that reason the tes- timony proves nothing, and makes no case to go to the jury. The same view is expressed in Bohan v. M., C. S. & W. By., 2 in which case Lyon, J., said, with great force : " the testimony of the plaintiff's witnesses, that they did not hear the bell ring, or did not see the lighted lantern at the head of the gravel cars, is purely negative, and its negative character is intensified by the fact, which is made perfectly obvious by their testimony, that they did not look attentively, but only casually, at the approaching train, and the attention of none of them was directed to the presence or absence of such warnings. Upon this record the credibility of the de- 1 L. K. 9 C. P. 551. a Gl Wise. 391, 19 Am. & Eng. R. E. Cas. 276. OMISSION OF SIGNALS. 429 fendant's witnesses, who testified positively to the ring- ing of the bell and the presence of the brakeman on the gravel car with a lighted lantern, stands unim- peached. * * * The negative testimony of plaintiff and his witnesses, while it has some bearing upon the ques- tion of the warnings, amounts to little more than, so to speak, a mere scintilla of evidence, and did not justify the jury in their disregard of all the positive and other- wise unimpeached testimony that the warnings were given." In Tully v. F. R. R., 1 Colburn, J., said : " the only evidence upon the subject of the ringing of the bell or sounding of the whistle came from one witness, and was as follows : ' I thought I heard the sound of the train coming, and it sounded to me like the puffing of the engine, and about the bell ringing I cannot say whether I heard it or not. I disremember, I was so excited at the time.' And in answer to the question, ' Did you hear any whistle ?' he said, ' I don't remem- ber.' This was all the evidence, and we are of opinion that it would not warrant the jury in finding that the bell was not rung, or that the steam whistle was not sounded. If it is urged that, if the bell had been rung or the whistle sounded, the witness would have remem- bered it, it may be urged, with about the same force, that, if the bell had not been rung nor the whistle sounded, the witness would, under the circumstances, have noticed the omission and remembered it. No legitimate inference can be drawn from the testimony one way or the other, and the attempt to draw an in- ference could only end in a mere conjecture." 370. The testimony of the plaintiff and his witnesses in such cases is, however honest and truthful, not re- liable. The excitement and shock of the accident ne- 1 134 Mass. 499, 14 Am. & Eng. R. R. Caa. 682. 430 OMISSION OF SIGNALS. cessarily affect the accuracy of the plaintiff's recollection as to the circumstances immediately preceding the acci- dent. The plaintiff and those who are in his immediate company at the time of the injury always believe that signals of the train's approach were not given, because they did not hear those signals, for if they had heard them they would not have attempted to cross the line, and they assume that, which the experience of life con- tradicts, that if the signals had been given they must have heard them. The testimony of disinterested by- standers is equally unreliable, whether they testify that the signals were or were not given, unless it be shown that for some particular reason their attention was directed to the approach of the train and to the sound- ing or non-sounding of its signals, and this remark ap- plies with the greater force to people who live near a railway line, or whose calling comjiels them to pass their time in proximity thereto, for such people become so accustomed to the noises incident to railway operations that any one sounding of the whistle or ringing of the bell makes no impression upon them. At the best, the testimony for the plaintiff being negative is not of equal value with positive testimony that the signals were given. The testimony of the engine-driver and fireman that the signals were given is of greater value. The railway servants who hold those responsible positions are generally men of intelligence. They realize thor- oughly the dangers necessarily incident to railway operations. They know that their duty requires them to give such signals, and that their own lives and the lives of the train hands and passengers as well as the lives of those who may cross the line may be put in peril if a collision result from their non-performance of duty in that respect, and that the disregard of that duty is an unpardonable offence against discipline, and LIFE TABLES. 431 as such, a cause of dismissal from the service. There are, therefore, operating against the engine-driver's and fireman's neglect to give the necessary signals some of the strongest forces that v can control human action, namely, the habits formed by discipline, professional ambition, a sense of duty, and the love of life. The reasonable doctrine is, as stated in section 369, that it is for the jury to weigh the evidence, pro and con, as to the giving of signals in such cases, but it is certainly the duty of the judge to put before the jury those con- siderations which determine the value of the conflicting evidence on one side and the other, in order that a just result may be reached. It is, however, held in Illinois, that it being the province of the jury to determine for themselves the credibility and weight of conflicting evidence, it is not the duty of the court to direct the jury what evidence is entitled to greater consideration on their part. 1 VIII. ADMISSIBILITY OF LIFE TABLES. Approved life tables are admissible in evidence to show, in case oj death, the decedent's expectancy of life. 371. The Carlisle or other approved tables are ad- missible in evidence to show the injured person's expec- tancy of life. 2 In Rowley v. L. & N. W. Ry., the Carlisle tables were referred to by a witness Who stated 1 Rockwood v. Poundstone, 38 111. 200; L. N. A. * C. Ry. v. Shirrs, 108 Id. 617, 19 Am. & Eng. R. It. Cas. 387 ; C. & A. It. R. v. Robinson, 106 111. L42, 19 Am. & Eng. It. R. Cas. 396. > Rowley v. L. & N. W. Ry., L. R. 8 Ex. 221 ; McDonald v. < . A- V W 26 Iowa 124; Schemer v. M. & St. J, Ry, 32 Minn. 126, 618, L9 km. ■ R.R.Cas.173; Simonson v. C, R. I. & V. Ry, 48 [owa 19; K. P. Ry . t, Lundin, 3 Colo. 94; D. S. P. & P. Ry. ''• W Iward, 4 Id. 1 ; Banter v. V ^ . C & II. R. R. R, 66 N. Y. 60; C R. R. v. Richarda, 62 I to. 806 ; I tonald on v .M.&M.R.R,18Iowa280; L. C. & L. R. R. v. Mahony,? Bn b(Kj ) 235; B., C, K. & W . R. R. v. Coates, 62 Iowa 487, 16 Am. & Eng. R. R. I B , 265.' 432 TOVEKTY OF PERSON INJURED. that he was an "accountant," and had had personal experience as to the mode in which life insurance busi- ness was conducted, and he then gave evidence as to the expectancy of life which was material in that case. It was held in the Exchequer Chamber that the evidence was properly admitted, Blackburn, J., saying: "We think the average and probable duration of a life of that asfe was material, and we do not see how that could be better shown than by proving the practice of life insur- ance companies, who learn it by experience. It was objected that the witness was not an actuary, but only an accountant, but as he gave evidence that he was ex- perienced in the business of life insurance, we think his evidence was admissible, though subject to remark on its weight." Brett, J., however, doubted the compe- tency of the witness upon the ground that he was not an actuary. In Donaldson v. M. & M. B. By., 1 and in Schef- fler v. M. & St. L. By.. 2 it is held that the tables are not to be proved by witnesses, but are to be judicially taken notice of by the court. IX. PROOF AS TO POVERTY OF THE PERSON INJURED. Proof is not admissible of the poverty of the pterson injured, or killed, or of the number of individuals dependent on him for support. 372. Proof of the number of the family dependent upon the person injured, or of his or their poverty, is not admissible, for such testimony would obviously tend to prejudice the jury and to divert their minds from the real issues in the cause. 3 1 18 Iowa 280. a 32 Minn. 125, 518, 19 Am. & Eng. R. R. Cas. 173. 3 Penna. Co. v. Roy, 102 U. S. 451, 1 Am. & Eng. R. R. Cas. 225 ; C. B. A Q. R. R. v. Johnson, 103 111. 512, 8 Am. & Eng. R. R. Cas. 225 ; M. P. By. v. Lyde, 57 Tex. 505, 11 Am. & Eng. R. R. Cas. 188. THE BURDEN OF PROOF. 433 CHAPTER Y. THE BURDEN OF PEOOF. I. The burden of proving negligence. II. The burden of proving contributory negligence. I. THE BURDEN OF PROVING NEGLIGENCE. The burden is upon the plaintiff of showing affirmatively negligence upon the part of the railway. 373. The general rule as to the burden of proof can best be stated in the words of Mr. Justice Stephen, 1 as follows : " whoever desires any court to give judgment as to any legal right or liability which depends on the existence or non-existence of facts which he asserts or denies to exist, must prove that those facts do or do not exist. The burden of proof in any action lies when the action begins on that party against whom the judg- ment of the court would be given if no evidence at all were produced on either side, regard being had to any presumption which might appear upon the pleadings. As the action proceeds, the burden of proof may be shifted from the party on whom it rested at first by his proving facts which raise a presumption in his favour." Under this general rule the plaintiff in actions tore- cover for injuries resulting from negligence must show affirmatively the duty of the defendant under I lie cir- cumstances and the defendant's non-performance of 1 Digest of the Law of Evidence, art. 93, 96. 28 434 NEGLIGENCE. that duty j 1 for, as Willes, J., said in Daniel v. M. Ry. : 2 " it is necessary for the plaintiff to establish by evidence circumstances from which it may fairly be inferred that there is reasonable probability that the accident resulted from the want of some precaution which the defendants might and ought to have resorted to ; and I go further, and say that the plaintiff should also show with reason- able certainty what particular precaution should have been taken." This dictum is cited with approval in Hayes v. M. C. R. R., 3 and in P., W. & B. R. R. v. Stebbing. 4 When the evidence fails to establish the defendant's duty and its non-performance, that is, when the evidence is equally consistent with the existence or non-existence of negligence, the judge ought not to permit the cause to go to the jury. 5 So where in an 1 C. & N.W. Ey. v. Smith, 46 Mich. 504; Brown v. C. & B. St. Ey., 49 Id. 153; Henry v. L. S. & M. S. Ey., Id. 495; Mitchell v. C. & G. T. Ey., 51 Id. 236 ; C, St. L. & N. O. E. E. v. Trotter, 61 Miss. 417 ; Parrott v. Wells, 15 Wall. 524 ; P. & E. E. E. v. Heil, 5 Weekly Notes of Cases (Penna.) 91 ; Clark v. P. & E. E. E, Id. 119 ; P. & E. E. E. v. Hummell, 44 Penna. St. 375 ; P. & E. E. E. r. Spearen, 47 Id. 300; Holbrook v. U. & S. E. E, 12 N. Y. 236; Curtis v. E. & S. E. E., 18 Id. 524; P.,W. & B. E E. v. Stebbing, 62 Md. 504, 19 Am. & Eng. E. E. Cas. 36 ; C, C. & I. C. Ey. v. Troesch, 68 111. 545 ; Eobinson v. F. & W. E. E., 7 Gray (Mass.) 92. 2 L. E. 3 C. P. 216, 222. 3 111 U. S. 228. 4 62 Md. 504, 19 Am. & Eng. E. E. Cas. 36. 8 Cotton fl.Wood; 8 C. B. N. S. 568, 98 E. C. L.; Hammack v. White, 11 C. J3. N. S. 588, 103 E. C. L. ; Toomey v. L., B. & S. C. Ey., 3 C. B. N. S. 146, 91 E C. L. ; Gallagher v. Piper, 16 C. B. N. S. 692, 111 E. C. L. ; Welfare v. L. & B. Ey., L. E. 4 Q. B. 693 ; Manzoni v. Douglass, 6 Q. B. D. 145 ; Allyn v. B- & A. E. E., 105 Mass. 77 ; Lane v. Crombie, 12 Pick. 177 ; Corcoran v. B. & A. Ey., 133 Mass. 507 ; B., C, E. & N. Ey. v. Dowell, 62 Iowa 629 ; Carter v. C. & G. Ey., 19 S. C. 20 ; B. & O. E. E. v. The State, to use of Allison, 62 Md. 479, 19 Am. & Eng. E. E. Cas. 83 ; Ford v. C. I. E. E, Iowa , 17 Am. & Eng. E. E. Cas. 599 ; C. & A. E. E. v. Mock, 88 111. 87 ; Cordell v. N. Y. C. & H. E. E. E, 75 N. Y. 330 ; Warner v. E. E. E, 44 Id. 465 ; T., W. & W. Ey. v. Branagan, 75 Ind. 490, 5 Am. & Eng. E. E. Cas. 630; Willoughby v. C & N.W. Ey., 37 Iowa 432; c/. Allen v. Willard, 57 Penna. St. 347 ; Simpson v. L. G. Omnibus Co., L. E. 8 C. P. 390 ; Mitchell v. Alestree, 1 Ventr. 295. W. P. P. Ey. v. Mulhair, 6 Weekly Notes of Cases (Penna.) 508, is not con- «istent with the authorities. BURDEN OF PROOF. 435 action to recover damages for injuries alleged to have been caused by a railway's negligence, if it appears that the injuries were occasioned by either one of two causes, for one of which the railway is responsible, but not for the other, the plaintiff cannot recover, for he must show affirmatively that the causa causans of his injury was negligence on the part of the railway, thus in Searles v. M. Ry., 1 the plaintiff's injuries resulted from the fall of a burning cinder from an engine on an elevated railway upon the plaintiff, who was on the street below, but the proof failed to show whether the cinder came from the smoke stack, which was in good order and guarded by a spark arrester, or from the fire box, which was not shown to be out of repair, and the court, therefore, entered judgment for the railway. It is not necessary that the party on whom the burden of proof rests should establish a case free from any doubt, and it is sufficient to justify a verdict for him that the evidence preponderates in his favour, and that the jury would not act unreasonably in finding a verdict for him. 2 II. THE BURDEN OF PROVING CONTRIBUTORY NEGLI- • GENCE. It is held in some jurisdictions that the burden is also upon the plain- tiff of showing affirmatively that the person injured was not con- tributarily negligent, but the general rule seems to be that, if the plaintiff's case has shown the railway to have been negligent, and the railway relies upon contributory negligence as a defence, the burden is on the railway oj proving that contributory negligence. 374. While all of the authorities agree that the burden is upon the plaintiff of showing thai the de- »101N.Y. 661. _ „ _ _ _ * Johnson v. Agricultural Ins. Co., 25 Hun 261 ; N. Y, L. E. & W. R. R. ft Seybolt, 95 N. Y. 562. 436 CONTRIBUTORY NEGLIGENCE. I fendant was negligent, or, in other words, that the id jury resulted prima facie from the negligence of the defendant, it is nevertheless held in some jurisdictions that the burden is on the plaintiff of showing affirm- atively that the person injured°was without fault, but that that may be shown, either by direct evidence or by proof of circumstances reasonably establishing that the injury may have been occasioned without contribu- tory negligence upon the part of the person injured. 1 Other authorities hold that if the j>laintiff's case has shown that under the circumstances the defendant owed him a duty, and that that duty has not been performed, and that the injury has resulted therefrom, the obliga- tion is then upon the defendant to prove plaintiff's con- tributory negligence, if he relies upon that contributory negligence as a defence to the action. 2 So far as re- 1 Per Brett, M. R., in Davey v. L. & S. W. Ry., 12 Q. B. D. 71 ; Murphy v. Deane, 101 Mass. 466; Mayo v. B. & M. R. R., 104 Id. 137 ; Hinckley v. C. C. R. R., 120 Id. 262; Tolman v. S. B. & N. Y. R. R., 98 N. Y. 198 ; Lee v. Troy Co., Id. 115 ; Warren v. F. R. R., 8 Allen 227 ; Gleason v. Bremen, 50 Me. 222; State v. G. T. Ry., 58 Id. 176 ; State v. M. C. R. R., 76 Id. 357, 19 Am. & Eng. R. R. Cas. 313 ; Pzolla v. M. C. R. R., 54 Mich. 273, 19 Am. & Eng. R. R. Cas. 334; Murphy v. C, R. I. & P. R. R., 45 Iowa 661 ; Starry v. D. & S. W. R. R., 51 Id. 419 ; Raymond v. B., C, R. & N. Ry., 65 Iowa 152, 18 Am. & Eng. R. R. Cas. 217, reversing s. c, 13 Id. 6 ; Behrens v. K. P. Ry., 5 Col. 400, 8 Am. & Eng. R. R. Cas. 184 ; Penna. Co. v. Galentine, 77 Ind. 320, 7 Am. & Eng. R. R. Cas. 517 ; P., C. & St. L. R. R. v. Noel, 77 Ind. 110, 7 Am. & Eng. R. R. Cas. 524 ; T., W. & W. Ry. v. Branagan, 75 Ind. 490, 5 Am. & Eng. R. R. Cas. 630; Hawes v. B., C, R. & N. R. R., 64 Iowa 315, 19 Am. & Eng. R. R. Cas. 220 ; L., N., A. & C. Ry. v. Shanks, 94 Ind. 598, 19 Am. & Eng. R. R. Cas. 28. 2 D., W. & W. Ry. v. Slattery, 3 App. Cas. 1155 ; W. & G. Ry. v. Gladmon, 15 Wall. 401 ; L. & St. L. R. R. v. Horst, 93 U. S. 291 ; Oldfield v. N. Y. & H. R. R., 14 N. Y. 310 ; Johnson v. H. R. R. R., 20 Id. 65 ; Button v. H. R. R. R., 18 Id. 248 ; Wilds v. H. R. R. R., 24 Id. 230 ; Buesching v. Gas-Light Co., 73 Mo. 229 ; Sweigert v. II. & St. J. R. R., 75 Id. 475 ; Waters v. Wing, 59 Penna. St. 213 ; Canal Co. v. Bentley, 66 Id. 32 ; P. R. R. v. Weber, 76 Id. 157 ; K. C, St. J. & C. B. R. R. v. Flynn, 78 Mo. 195, 18 Am. & Eng. R. R. Cas. 23 ; D. & W. R. R. v. Spicker, 61 Tex. 427, 21 Am. & Eng. R. R. Cas. 160 ; P. R. R. v. McTighe, 46 Penna. St. 316 ; P. R. R. v. Warner, 89 Id. 59 ; C. & P. R . R. v. Rowan, 66 Id. 393; Abbett v. C, M. & St. P. Ry., 30 Minn. 482 ; Mares v. N. P. R. R., Dak. , 17 Am. & Eng. R. R. Cas. 620 ; Wilson v. N. P. R. R., 26 Minn. BURDEN OF PROOF. 437 gards the burden of proof, the conflict of authority on this question is not of material importance, for the plaintiff, under either line of authorities, is entitled to go to the jury when he has proven an injury to himself caused by negligence on the part of the defendant, without any obvious want of care on his own part, but the variance between the cases is, as shown in the next chapter, of importance as regards the presumption of contributory negligence, and, upon principle, it seems to be much more reasonable to throw on the railway the burden of proving that which only becomes a ma- terial issue in the cause when negligence upon its part has been proved. 278 ; McQuilken v. C. P. E. R, 50 Cal. 7 ; MacDougall v. C. Ry., 63 Cal. 431, 12 Am. & Eng. R. R. Cas. 143; P., C. & St. L. Ry. v. Wright, 80 Ini 182, 5 An. & Eng. R. R. Cas. 628. 438 PRESUMPTIONS. CHAPTER VI. PRESUMPTIONS. I. The presumption as to negligence. II. The presumption as to contributory negligence. III. Certain minor presumptions. I. THE PRESUMPTION OF NEGLIGENCE. There is a rebuttable presumption of negligence on the part of the rail- way in the case of an injury caused by circumstances from which may fairly be inferred a non-performance of duty on the part of the railway. 375. In some cases "the very nature of the accident may of itself, and through the presumption it carries, supply the requisite proof;" 1 thus where circumstances are proven from which it may fairly be inferred that there is a reasonable probability that the accident re- sulted from the want of some precaution which the railway might, and ought to, have resorted to, there is, in the absence of explanation by the railway, a pre- sumption of negligence upon its part, or, as the rule is put in Scott v. L. & St. K. Docks Co., 2 "where the par- ticular thing causing the injury has been shown to be under the management of the defendant, or his servants, and the accident is such as in the ordinary course of things does not happen, if those who have the manage- ment use proper care, it affords reasonable evidence in the absence of explanation, that the accident arose from want of care," In W. T. Co. v. Downer, 3 Field, J., thus states the rule : " a presumption of negligence 1 Wharton on the Law of Negligence, Par. 421. 2 3 H & C. 596. s 11 Wall. 129. PRESUMPTION OF NEGLIGENCE. 439 from the simple occurrence of an accident seldom arises, except where the accident proceeds from an act of such a character that, when due care is taken in its perform- ance, no injury ordinarily ensues from it in similar cases, or where it is caused by the mismanagement, or misconstruction, of a thing over which the defendant has immediate control, and for the management, or construction, of which he is responsible." 1 This rule was first applied in cases where passengers were injured by the breaking of the axle of a coach, 2 or by the careless driving of a coach, 3 or by the coming off of a wheel of a coach. 4 This presumption has been held to furnish proof of negligence in cases of collision between two trains operated by the same railway, 5 in the case of a collision between two street cars, 6 in the case of collision between a train which leaves the main line and cars on a siding, 7 in the case of the explosion of the boiler of a locomotive engine, 8 in cases of the derailment of railway cars, 9 in the case of the giving way of an embank- 1 See also R. R. v. Mitchell, 11 Heisk. 400. 2 Christie v. Griggs, 2 Camp. 79. 3 Stokes v. Saltonstall, 13 Pet. 181. * Ware v. Gay, 11 Pick. 106. 5 Skinner v. L. B. & S. C. Ry., 5 Ex. 787 ; I. R. R. v. Mowery, 36 Ohio St. 418, 3 Am. & Eng. R. R. Cas. 361 ; N. O., J. & G. N. R. R. v. Allbritton, 38 Miss. 242. 6 Smith v. St. P. C. Ry., 32 Minn. 1, 16 Am. & Eng. R. R. Cas. 310. 7 N. Y., L. E. & W. R. R. v. Seybolt, 95 N. Y. 562, 18 Am. & Eng. R. R. Cas. 162. 8 Robinson v. N. Y. C. & H. R. R. R-, 20 Blatchf. 338. 9 Carpue v. L. & B. Rv., 5 Q. B. 747, 48 E. C. L.; Dawson ». M. By ,7 11. & N. 1037 ; Sullivan v. P. & R. R. R-, 30 Penna. St. 23 I ; N. V, F, B. & W. R. R. v. Daugherty, 11 Weekly Notes of < lases i Penna.) 437 ; Edgerton v. >'. Y. C. & H. R R. R., 39 N. Y. 227; Festal v. M. R B., L09 Mass. 720; George v. St. L., I. M. & S. R. R., 34 Ark. 613, I Am. & Eng. B R Cas. 294; I'., C. & St. L. Ry. v. Williams, 74 Ind. 462; < '., C.,C. & I By. v. Newell, 76 [d Curtis*. B. & S. R R, 18 N. Y. 534; Tuttle v. <'., B I. & P. K.v., 48 [owa 236; Brignoli v. C. & G. E. R. K, 4 Daly L82; C, B. & Q. B B. v. ' 19 111. 510. Pollock, C. B., in Bird v. Q. W. By., 28 L. J. Exch. 3, doubts u to the applicability of the presumption of negligence on the part of the rail- way in a case of simple derailment. See also Heaale v. l. l'>. & W. By,76 ill. 440 PRESUMPTION OF NEGLIGENCE. rrieiit, 1 in ,he case of the breaking down of a bridge, 2 in the case jf the carrying away of a bridge by a freshet, 3 in cases where by a sudden jerk in starting or stopping a car a passenger was thrown down, 4 in a case where a pas- senger was injured in the course of a fight between other passengers, 5 in a case where a passenger was injured by the fall of a berth in a sleeping-car, 6 in a case where a passenger on a packet boat was injured by a bale of cotton negligently thrown down a hatchway by a ser- vant of the packet company, 7 in a case where a passen- ger while being carried in a car of the defendant, a street car line, was injured in a collision between that car and a railway engine, at a level crossing of the rail- way line and the street on which the car ran; 8 in a case where an intending passenger having purchased a ticket, and while crossing the line at a station under the direction of a station master, was, without fault upon her part, run over by a train ; 9 in a case where the plaintiff, walking upon the highway, was injured by the fall of a barrel from the upper story of the defendant's warehouse ; 10 in a case where the plaintiff, an officer of 501 ; Curtis v. R. & S. R. R., 18 N. Y. 543 ; L. R. & F. S. Ry. v. Miles, 40 Ark. 298, 13 Am. & Eng. R. R. Cas. 10 ; Yonge v. Kinney, 28 Ga. Ill ; T. & St. L. R. R. v. Suggs, 62 Tex. 323, 21 Am. & Eng. R. R. Cas. 475. 1 G. W. Ry. v. Braid, 1 Moore P. C. N. S. 101, 9 Jur. N. S. 339 ; P. & R. R. v. Anderson, 94 Penna. St. 251. 2 B. S. O. & B. R. R. v. Rainbolt, 99 Ind. 551, 21 Am. & Eng. R.R. Cas. 466. 3 K. P. Ry. v. Miller, 2 Colo. 442. 4 N. J. R. R. v. Pollard, 22 Wall. 341 ; C. P. Ry. v. Swayne, 13 Weekly Notes of Cases (Penna.) 41 ; Ferry Co. v. Monaghan, 10 Id. 46; Dougherty v. M. R. R., 81 Mo. 325, 21 Am. & Eng. R. R. Cas. 325. 5 P. & C. R. R. v. Pillow, 76 Penna. St. 510. 6 C, C, C. & I. R. R. v. Walrath, 38 Ohio St. 461, 8 Am. & Eng. R. R. Cas. 371. 7 O. & M. Packet Co. v. McCool, Ind. , 8 Am. & Eng. R. R. Cas. 390. 8 P. P. Ry. v. Weiller, 17 Weekly Notes of Cases (Penna.) 306. 9 B. & O. R. R. R. v. State to use of Mali one, 63 Md. 135, 21 Am. & Eng. R Ft. Cas. 202. 10 Byrne v. Boadle, 2 H. & C. 721. PRESUMPTION OF NEGLIGENCE. 441 the Custom's Service, while in the discharge of his duty, entering the defendant's warehouse, was injured by the fall of some bags of sugar from an upper story of the warehouse ; l in a case where the plaintiff, walking on a highway under a railway bridge, was injured by the falling of a brick from an abutment, a train of the de- fendant's having just passed, and the bridge having been in use about three years and gaps being found in the wall from which other bricks had apparently fallen; 2 in a case where, in the excavation of a cellar abutting upon a highway, the cellar was left unfenced, and in the morning the dead body of the plaintiff's decedent, he being a man of proved sobriety, was found in the cellar, with no marks of violence upon him other than such as might have resulted from a fall into the cellar, and with his watch and other personal property undis- turbed; 3 and in a case where the dead body of the plaintiff's decedent was found after dark between the rails of the defendant's line, a train drawn by a locomo- tive without a headlight having recently passed, and decedent having been last seen upon the highway ap- proaching a public crossing of the defendant's line. 4 376. This presumption has been held to be inappli- cable in the case of a person injured on a highway used as a part of a railway line by the falling upon him of the door of a passing freight car, in the absence of proof that the defect in the fastening of the door had been brought to the knowledge of the defendant, or bad so long existed that that knowledge must be presumed; 5 in a case where a passenger was injured by the fall of a girder of a bridge over the line upon a carriage in 1 Scott v. L. & St. L. & K. Docks Co., 3 H. & C. 596. 2 Kearney v. L. B. & 8. C. By., L. B. 6 Q. B. 759. 8 Allen v. Willard, 57 Penna. St. 374 ; rf. Lehman >■. Brooklyn, 29 Bart *L. V. R. R. v. Hall, fil Penna.8t. 361 ; P. B, B < Fortn< 90 W 6 Case v. C, R. I. & P. R. K., 04 Iowa 7G2, 1'.' \>... Every one concedes the soundness of the general principle thus tersely stated, but there is often a difference of opinion in the trial of causes as to the real nature of the issue, and consequently as to the character of the tribunal whose decision is to conclude it. In actions for the recovery of damages for injuries to the person, it is generally for the jury to determine whether the defendant was negligent or the plaintiff was contributorily negligent; 1 that is, whether either party failed to exercise that degree of care which the 1 Crofts v. Waterhouse. 3Bing.319, HE. C. L: ; McCnllyr. Clarke, 40 Penna. St. 406; W. & A. R. R. v. King, 70 Ga. 261, 19 Am. & Eng. B. EL I Wright v. G. R. R., 34 Ga. 337 ; P. & C. B. B. v. Andrews, 89 Md.848; Mo- Mahon v. N. C. Ry., Id. 449; P. R. B. v. State, to use of McGirr, 81 I.I. 108, 19 Am. & Eng. R. R. Cas. 326; P. & R. K. EL v. Killipo, 88 Penna. St. 412 ; Schura v. P. R. R., 107 Id. 8; Bell v. H. & Si. J. Ft. EL, 7:' M6. 50, I \m. A Eng. R. R. Cas. 580 ; Guggenheim v. L. 8. & M.S. K. EL, — Mich. — , 22 \ m & Eng. R. B. Cas. 546; Peuna. Co. v. liens '1, 70 Ind. 569, 6 Am. A Eng. R. R. Cas. 79. 448 THE DUTY OF THE JUDGE. circumstances of the case demanded, for the inquiry necessitates, in the words of Strong, J., in McCully v. Clarke, 1 an ascertainment of "both the duty and the extent of performance." In order to reach a result the jury have not only to consider the acts and omissions of the parties, but they must also draw all the infer- ences which directly result from those acts and omis- sions, for, in general, the negligence of one party or the other is, as Dr. Wharton has pertinently said, 2 not "the subject of direct proof, but an inference from facts put in evidence." II. THE DUTY OF THE JUDGE. It is the duty of the judge to submit for the determination of the jury only those issues which are not concluded and agreed upon either by the pleadings, or by express admissions of the parties, or by the tacit admissions of the parties in their conduct of the cause ; and before submitting those issues, it is the duty of the judge to deter- mine whether as to each issue competent evidence has been produced, which, if believed by the jury, will justify men of reasonable minds in finding a verdict in favour of the party upon whom rests the burden of proof in that particular issue. 382. Lord Blackburn has clearly pointed out, in his judgment in D., W. & "W. Ry. v. Slattery, 3 that it is the function of the jury to determine only those facts which are the subject of controversy, and, therefore, where any facts, and the necessary inferences to be drawn from them, are expressly admitted, either by the effect of the pleadings, or by a formal admission at the trial, or are tacitly admitted " by such a conduct of the cause as is equivalent to such an admission," it is not necessary to take the opinion of the jury thereon, but it is the duty of the judge to decide as to their 1 40 Penna. St. 406. * Law of Negligence 354. 8 3 App. Cas. 1201. THE COURT AND THE JURY. 449 legal effect. Therefore, upon the issue of the defend- ant's negligence when the plaintiff has put in all the legally admissible testimony which his counsel sees proper to introduce, and upon the issue of the plain- tiff's contributory negligence, when the plaintiff's case has not shown him to have been contributorily negli- gent, and when the defendant has put in all the evi- dence which his counsel sees proper to introduce, it becomes the duty of the judge to determine whether a jury of reasonable men, believing that testimony, giving full weight to it, and drawing all the inferences from it, would be justified in finding a verdict for the party who has produced that evidence, for as Williams, J., said in Adams Express Co. v. Sharpless : x "the jury cannot find nesdisence from facts and circumstances which do not tend to show want of reasonable and ordinary care, any more than they can find any other facts without competent and sufficient evidence." It was formerly the doctrine that a question of fact must necessarily be submitted to the jury, if it were supported by no more than a mere scintilla of evidence, but the later cases have adopted a more reasonable rule, which has been stated by different judges in different words, but to the same effect. Thus, in Jewell v. Parr, 2 Maule, J., said : "applying the maxim, de minimis non curat lex, when we say that there is no evidence to go to a jury, we do not mean that there is literally none, but that there is none which ought reasonably to satisfy a jury thai the fact sought to be proved is established." In Toomey v. L.B.&S.C.Ky., 3 Williams, J., said: "it is not enough to say that there was some evidence, Cor every person who has had any experience in courts of justice knows very well that a case of this sort against ;i railway com- > 77 Penna. St. 522. 2 1 8 C B. 909, 76 E. C. L. 3 3 C. It. N. S. 149, 91 E. C L. 29 450 THE DUTY OF THE JUDGE. pany could only be submitted to a jury with one result. A scintilla of evidence, or a mere surmise that there may have been negligence on the part of* the defendants, clearly would not justify the judge in leaving the case to the jury; there must be evidence upon which they might reasonably and properly conclude that there was negligence." In Ryder v. Wombwell, 1 Willes said: "there is in every case a preliminary question which is one of law, viz. : whether there is any evidence on which the jury could properly find the question for the party on whom the onus of proof lies. If there is not, the judge ought to withdraw the question from the jury, and direct a nonsuit if the onus is on the plaintiff, or direct a verdict for the plaintiff if the onus is on the defendant." In Bridges v. N. L. Ry., 2 the judges having been called in, Pollock, B., said, referring to Ryder v. Wombwell: "this is a clear ex- position of the rule, and it has been generally acquiesced in and acted upon, and it follows from it that although the question of negligence, or no negligence, is usually one of pure fact, and, therefore, for the jury, it is the duty of the judge to keep in view a distinct legal defi- nition of negligence as applicable to the particular case; and if the facts proved by the plaintiff do not, whatever view can be reasonably taken of them, or inference drawn from them by the jurors, present a hypothesis which comes within that legal definition, then to with- draw them from their consideration." The Lords, who decided Bridges' case, having held that upon the facts there was evidence of negligence to go to the jury, but not in express terms either approving of or dissenting from the rule as laid down in Ryder v. Wombwell, there not unnaturally followed some misapprehension as to the proper course to be pursued by a judge in directing 1 L. E. 4 Ex. 32. 'LR.7 H. L. 213. THE COURT AND THE JURY. 451 a jury upon a question of negligence In Robson v. N. E. Rj., 1 Coleridge, C. J., intimated that the effect of Bridges' case was that "if there was any evidence at all, it is for the jury and not for the judge to say whether there was negligence on the part of the company ;" and Brett, J., added 2 that, "as the carrying of passengers was conduct in the ordinary affairs of life, the jury was the proper tribunal to decide;" and in Jackson v. Metro- politan By., 3 Amphlett, J. A., said : "it is now settled by the case of Bridges v. N. L. By. (though previously doubted by many eminent judges), that the question whether in cases of this sort negligence can be inferred from a given state of facts, is itself a question of fact for the jury, and not a question of law for the court, or the presiding judge." But when Jackson's case came be- fore the House of Lords, 4 Cairns, L. C, and Lords O'Hagan, Blackburn, and Gordon concurred in holding that Bridges' case did not have the effect attributed to it of qualifying the rule in Byder v. Wombwell, Cairns, L. C, saying: 5 "the judge has a certain duty to dis- charge and the jury have another and a different duty. The judge has to say whether any facts have been es- tablished by evidence from which negligence may be reasonably inferred ; the jurors have to say whether from those facts when submitted to them negligence ought to be inferred" and Lord Blackburn adding: "on a trial by jury I conceive, undoubtedly, that the facts are for the jury and the law for the judge. * • * It has always been considered a question of law, to be deter- mined by the judge, subject, of course, to review, whether there is evidence which if it is believed, and the con- trary evidence, if any, is not believed, would establish 1 2 Q. B. D. 87. ' P- 89 - 8 L. R. 2 C. P. D. 127. * 3 App. Cas. 193. 6 P. 197. 452 THE DUTY OF THE JUDGE. the fact in controversy. It is for the jury to say whether and how far the evidence is to be believed. And if the facts, as to which evidence is given, are such that from them a farther inference of fact may legit- imately be drawn, it is for the jury to say whether that inference is to be drawn or not. But it is for the judge to determine, subject to review, whether from those facts that farther inference legitimately may be drawn." In D. W. & W. Ey. v. Slattery, 1 the rule as thus de- fined, was reasserted. Lord Coleridge, however, 2 doubted the practical efficacy of the rule, saying: "to me the uselessness of such rules as practical guides lies in the inherent vagueness of the word 'reasonable,' the absolute impossibility of finding a definite standard to be expressed in language, for the fairness and reason of mankind, even of judges. The reason and fairness of one man is manifestly no rule for the reason and fairness of another, and it is an awkward, but so far as I can see, an inevitable consequence, of the rule, that in every case where the decision of a judge is overruled, who does or does not stop a case on the ground that there is, or is not, reasonable evidence for reasonable men, those who overrule him say, by implication, that in the case before them the judge who is overruled is out of the pale of reasonable men. The same is true of a whole court, the decision of which, in a case of this sort, is reversed upon appeal." But this criticism, eminent as is the source from whence it proceeds, would seem to be answered by the observations of Mellor, J., and of Lord Blackburn. The former said, in Ryder v. Wombwell : 3 "there is no doubt a possibility in all cases where the judges have to determine whether there is evidence on which the jury may reasonably find a fact, that the *3 App. Cas. 1155. J P. 1197. * L. R. 4 Ex. 42. THE COURT AND THE JURY. 453 judges may differ in opinion, and it is possible that the majority may be wrong. Indeed, whenever a decision of the court below on such a point is reversed, the ma- jority must have been so, either in the court above or in the court below. This is an infirmity which must affect all tribunals." The latter, after quoting the statement of Mellor, J., added, in Metropolitan Ry. v. Jackson i 1 "I quite agree that this is so, and it is an evil. But I think it a far slighter evil than it would be to leave in the hands of the jury a power which might be exercised in the most arbitrary manner." 383. One of the best expositions of the rule is that which was given by Miller, J., in the Supreme Court of the United States, in Pleasants v. Fant, 2 where that learned judge says : " it is the duty of a court in its re- lation to the jury, to protect a party from unjust ver- dicts arising from ignorance of the rules of law and of evidence, from impulse of passion or prejudice, or from any other violation of his lawful rights in the conduct of a trial. This is done by making plain to them the issues they are to try, by admitting only such evi- dence as is proper in those issues, and rejecting all else ; by instructing them in the rules of law by which that evidence is to be examined and applied, and finally, when necessary, by setting aside a verdict which is un- supported by evidence, or contrary to law. In the dis- charge of this duty it is the province of the court, either before or after the verdict, to decide whether the plain- tiff has given evidence sufficient to support, or justify, a verdict in his favour. Not whether on all the evi- dence the preponderating weight is in his favour, thai is the business of the jury, but conceding to all the evi- dence the greatest probative force which, according to the law of evidence, it is fairly entitled to, is it sufficient '3App.Cas.208. ' 22 Wall. 121. 454 THE DUTY OF THE JUDGE. to justify a verdict ? If it is not, then it is the duty of the court, after a verdict, to set it aside and grant a new trial. Must the court go through the whole cere- mony in such a case, of submitting to the jury the testi- mony on which the j>laintiff relies, when it is clear to the judicial mind, that if the jury should find a verdict in favour of the plaintiff, that verdict would be set aside and a new trial had ? Such a proposition is absurd, and accordingly we hold the true principle to be, that if the court is satisfied that, conceding all the inferences which the jury can justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court should say so to the jury." This doctrine, in itself so obviously reasonable and so con- ducive to the right administration of justice, has been asserted in many other cases. 1 1 Jewell v. Parr, 13 C. B. 909, 76 E. C. L. ; Wheelton v. Hardisty, 8 E. & Bl. (92 E. C. L.) 232; Bridges v. N. L. Ry., L. R. 7 H. L. 213; Eobson v. K E. Ry., L. R. 2 Q. B. D. 87 ; Metropolitan Ry. v. Jackson, L. R. 3 App. Cas. 193 ; D. W. & W. Ry. v. Slattery, Id. 1170 ; Pawling v. U. S., 4 Cranch 221 ; U. S. Bank v. Smith, 11 Wheaton 179 ; Parks v. Ross, 11 Howard 373; Schuchardt v. Allen, 1 Wallace 368; Merchants' Bank v. State Bank, 10 Id. 604 ; Improvement Co. v. Munson, 14 Id. 442 ; Bowditch v. Boston, 101 U. S. 16 ; Randall v. B. & O. R. R., 109 Id. 478; Hughes v. Boyer, 9 Watts. 556; Germantown P. Ry. v .Walling, 97 Penna. St. 55 ; Central R. R. v. Feller, 84 Id. 229 ; Amer. S. S. Co. v. Bryan, 83 Id. 448 ; P., W. & B. R. R. v. Stinger, 78 Id. 219 ; Crissey v. Hestonville P. Ry., 75 Id. 83 ; Phila. P. R. v. Hassard, Id. 376 ; McKee v. Bidwell, 74 Id. 223 ; Giblin v. McMullen, L. R. 2 P. C. 335 ; L. V. R. R. v. McKeen, 90 Penna. St. 122 ; Demy v. Wiiliams, 5 Allen 1 ; Brooks v. Somerville, 106 Mass. 271; Penna. Canal Co. v. Bentley, 66 Penna. 34 ; Howard Express Co. v. Wile, 64 Id. 201 ; P. & R. R. R. v. Schertle, 97 Id. 450; Hyatt v. Johnston, 91 Id. 196 ; Longenecker v. P. R. R., 105 Id. 328 ; Hoye v. C. & N. W. Ry., 62 Wise. 666, 19 Am. & Eng. R. R. Cas. 347 ; Spens- ley v. Insurance Co., 54 Wise. 433 ; Sabotta v. Insurance Co., 54 Id. 687 ; Fitta v. C. C. Ry., 59 Wise 325, 15 Am. & Eng. R. R. Cas. 462 ; C. P. Ry. v. Foxley, 107 Penna. 537 ; Hogan v. C, M. & St. P. Ry., 59 Wise. 139, 15 Am. & Eng. R. R. Cas. 439 ; Dietrich v. B. & H. S. Ry., 58 Md. 347, 11 Am. & Eng. R. R. Cas. 115 ; Carter v. C. & G. R. R., 19 Shand. (S. C.) 20, 15 Am. & Eng. R. R. Cas. 414 ; Finney v. N. P. Ry., Dak. 12 Am. & Eng. R. R. Cas. 17 ; P. R. R. v. Fortney, 90 Penna. St. 324, 1 Am. & Eng. R. R. Cas. 129 ; Abbett v. C, M. & St. P. Ry. 30 Minn. 482 ; Montclair v. Dana., 107 U. S. 162 ; Ander- son County v. Beal, 113 U. S. 227 ; Baylis v. Travellers' Insurance Co., 113 U. S. 316 ; Marshall v. Hubbard, 117 U. S. 415. THE COURT AND THE JURY. 455 384. Negligence being a question of fact for the jury, it necessarily follows that no possible act of either com- mission or omission on the part of either the plaintiff or the defendant can, with logical accuracy, be charac- terized as per se negligent, but all that can be predicated of any such act, when found or admitted as a fact, is, that it is so obviously negligent, that a jury would not be reasonable if they found it not to be negligence, and that, therefore, it is the duty of the judge to so direct the jury, and, if they find against his direction, to grant a new trial. The jDractical application of the rule in the trial of actions against railways for injuries to the person, therefore, is, that, before submitting the issue to the consideration of the jury, the judge must 1 deter- mine whether or not the party on whom the burden of proof lies has, according to the rules of evidence, proved facts, which, although not necessarily satisfactory to the mind of the judge, would justify a jury of reason- able men in finding a verdict in favour of that party ; thus, if the issue be taken upon the negligence of the defendant, the question for the determination of the judge is, whether or not the evidence produced on behalf of the plaintiff, admitting its truth, stating it fairly, and drawing from it all the inferences that rea- sonably can be drawn from it, is such that the jury may reasonably find a verdict for the plaintiff. If the evi- dence does not amount to this, it is the duty el' the judge to nonsuit the plaintiff or to direct a verdict for the defendant. If the issue be taken upon the {►Iain- tiff's contributory negligence, the judge musl determine whether the testimony upon behalf of the plaintiff proves him to have been contributorily negligent If that testimony does have that effect, it is the duty of the judge to nonsuit the plaintiff or to direel a verdict for the defendant. If the plaintiff's case lias not de- 456 THE DUTY OF THE JUDGE. veloped contributory negligence, and the testimony pro- duced upon the part of the defendant, admitting its truth and drawing all the inferences that can reason- ably be drawn from it does have that effect, it is then the duty of the judge to submit the question of con- tributory negligence to the jury ; but, if the testimony offered by the defendant to establish the plaintiff's con- tributory negligence is not sufficient, conceding its truth and drawing the inferences from it, to justify a verdict for the defendant upon that issue, it is the duty of the judge to direct the jury that the plaintiff has not been shown to have been contributorily negligent. It must be remembered that it is for the jury, and not for the judge, to pass upon the credibility of witnesses. It is, therefore, not competent for the judge to direct a ver- dict for the plaintiff upon the issue of the defendant's negligence, when the evidence to establish that negli- gence has been produced upon behalf of the plaintiff, nor to direct a verdict for the defendant upon the issue of the plaintiff's contributory negligence, when the evidence to prove that contributory negligence has been produced upon behalf of the defendant, because, in either case, the jury may not believe the witnesses, and it is only when the truth of the testimony can be assumed that the judge is authorized to direct a verdict, for the direction of a verdict amounts to a statement that, ad- mitting the truth of the testimony produced to support the issue, that testimony is not legally sufficient to support it. This view is illustrated by Baylis v. Traveller's Ins. Co., 1 in delivering judgment, in which case, Matthews, J., said : " without a waiver of the right of trial by jury by consent of parties, the court errs if it substitutes itself for the jury, and, passing upon ths 1 113 u. S. 316. THE COURT AND THE JURY. 457 effect of the evidence, finds the facts involved in the issue, and renders judgment thereon." 385. No one can carefully study the cases against railways for injuries to the person as reported in the books, or observe the trials of such causes in the courts, without coming to the conclusion that there is often a miscarriage of justice, for, as Lord Blackburn said, 1 the real question seems often to be " whether it was not shabby in the railway company not to give something to the widow and orphans of the deceased." It is com- mon to attribute that result to the prejudices of jurors. But a careful consideration of the details of any such case will show that, more frequently, the real cause of the failure to do substantial justice is the inability of the judge at the trial to properly control the jury. Better results would undoubtedly be attained if the judges would submit specific questions for the deter- mination of the jurors so framed as to elicit a distinct finding as to the particular act of negligence upon the part of the defendant, or of contributory negligence upon the part of the plaintiff. 2 In jurisdictions where this course upon the part of the judge is not permis- sible, or, if permissible, not expedient, lie may never- theless, if he be intelligent, courageous, of sufficient decision of character, and, in one word, competent, pre- vent, by the application of the rules of evidence, the minds of the jury from being diverted from the true point of inquiry, and submitting questions to them only upon adequate proof, and in his charge putting clearly and unmistakably before them the precise questions of fact which it is their province to determine, and by his 1 D., W. & "W. Ry. v. Blattery, L. R. 3 App. Cm. 1162. 2 The technicalities required inflpecial rerdicts under the common law n odei them inadvisable. See P., P. W. AG B. B. o. Evens, 53 Penna St. 2 I P, C. & St. L. R. R. v. Spencer, 93 Ind. 186, 21 Am, & Eng. B. B. I a 178. 458 THE DUTY OF THE JUDGE. instructions upon the law, conveyed in clear terms and laid down with firmness and decision, he may save them from being swayed by extraneous circumstances and from misapprehending the question in the cause, the evidence relevant to it, or the rule of law controlling their decision, and if they should fail to obey his ruling as to the law, or should disregard the evidence, he can, by the granting of a new trial, prevent injustice. DAMAGES. 459 CHAPTER VIII. DAMAGES. I. Damages for breaches of contract. II. Damages for torts. III. Exemplary damages. IV. The measure of damages in cases of injuries not causing death. V. The measure of damages in cases of injuries causing death. VI. Statutory limitations of damages. I. DAMAGES FOR BREACHES OF CONTRACT. Where the action is grounded upon the railway's breach of a contract of carriage, damages are recoverable for such injuries as naturally result from the breach of contract, and for such other injuries as may be supposed to have been in the contemplation of both parties at the time of the making of the contract as a probable result of its breach. 386. Where the action is grounded upon the railway's breach of a contract of carriage, the damages recover- able are such as may fairly and reasonably be con- sidered as either naturally arising, that is, arising according to the usual course of things from such breach of contract itself, or such as may be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of a breach of it. 1 If the plaintiff seeks to recover special damages beyond those which may be supposed to have been in the contemplation of both parties at the time of the making of the contract as a probable result of a breach of it, it is necessary that the circumstances upon 1 Hobbs v. L. & S. W. Ry., L. R. 10 Q. B. Ill; Qoimby v. Vanderbilt, 17 N. Y. 80G; Trigg v. St. L., K. C. & N. Ky., 71 Bio. 117, follow from the breach of contract, A person might walk a hundred times, or, indeed, a great many more 30 40 G BREACH OF CONTRACT. times, from Eslier to Hampton, without falling down and breaking a limb; therefore, it could not be con- tended that that could have been anticipated as the likely and probable consequence of the breach of con- tract. Again, the party is entitled to take a carriage to his home. Suppose the carriage overturns, or breaks down, and the party sustains bodily injury from either of these causes, it might be said : ' if you had put me down at my proper place of destination, where by your contract you engaged to put me clown, I should not have had to walk, or to go, from Esher to Hampton in a carriage, and I should not have met with the accident in the walk, or in the carriage.' In either of those cases the injury is too remote, and I think that is the case here ; it is not the necessary consequence, it is not even the probable consequence, of a person being put down at an improper place, and having to walk home, that he should sustain either personal injury or catch a cold. That cannot be said to be within the contempla- tion of the parties so as to entitle the plaintiff to recover, and to make the defendants liable to pay damages for the consequences." In Francis v. St. L. T. Co., 1 the facts were similar to those in Hobb's case, and a like conclusion was reached by the court. 2 887. There are, however, some reported cases in which passengers have been permitted to recover as damages, for the breach by a railway of its contract of carriage, compensation for illness following upon a walk taken by the passenger in consequence of the 1 5 Mo. Ap. Cas. 7. 2 See also Walsh v. O, M. & St. P. Ry., 42 Wise. 23 ; L. & N. R. R. v. Flem- ing, 14 Lea (Tenn.) 128, 18 Am. & Eng. R. R. Cas. 347 ; Lewis v. F. & P. M. Ry., 54 Mich. 55, 18 Am. & Eng. R. R. Cas. 263 ; St. L., K. C. & N. R. R. v. Trigg, 74 Mo. 147, 6 Am & Eng. R. R. Cas. 345 ; St. L., K. C. & N. R. R. v. Marshall, 78 Mo. 610, 18 Am. & Eng. R. R. Cas. 248 ; Morse v. Duncan, TJ. S, C. C S. D. Miss., 8 Am. & Eng. R. R. Cas. 374. DAMAGES. 467 railway's breach of contract; 1 but there is, in the judg- ments in these cases, nothing which answers the reason- ing so forcibly put by Cockburn, C. J., in Hobb's case. 388. Upon the same principle, a passenger, whose contract of carriage has been broken by the failure of the railway, through the arrival of its train too late to make an advertised connection, cannot recover the cost of a special train, where he had no business at the point of destination which would have induced him to incur such an expenditure at his own cost; 2 nor can a plain- tiff, who sues in an action sounding in contract, recover damages from the railway for indignities inflicted upon him by the police, for a cold caught while confined, and for mental suffering, following a wrongful arrest by the railway's servants. 3 So, in Theobald v. Ry. Passengers Assurance Co., 4 the plaintiff, in stepping from a rail- way carriage at a station, slipped and fell without fault upon his part, and brought suit against the defendant on a policy covenanting that £1,000 would be paid to the plaintiff's personal representative in case of his death, or a proportionate part of the £1,000 to himself in case of injury resulting from railway accident while trav- elling. There was verdict for the plaintiff £34 19s. for medical attendance and expenses, and £100 for loss of time or loss of profits. A rule to enter a nonsuit was 1 Brown v. C, M. & St. P. Ry., 54 Wise. 342, 3 Am. & Eng. R. R. Cas. 444 ; C, H. & I. R. R. v. Eaton, 94 Ind. 474, 18 Am. & Eng. R. B. < 9b& 26 I ; T.. E. & W. Ry. v. Fixe, 88 Ind. 381, 11 Am. & Eng. R. R. 0m. 109 j Penna. Co. v. Hoagland, 78 Ind. 203,3 Am. & Eng. R. R. Cas. 4.'.(, ; S. I.'. B. v. Een- drick, 40 Miss. 374; C. & I.C.R. R. v. Farrell,31 Ind. 408; B, I'. AC. By. V. Pixley, 61 Ind. 22; N. O., J. & G. N. R. R. ft Bnrat, 36 Mi».660j LAG.N R. R. v. Gilbert, 64 Tex. 636, 22 Am. A: ling. R. R. Cas. 406 ; LAG. N. B. ft. v. Terry, 62 Tex. 380, 21 Am. & Eng. !: B. Oa 323. * Le Blanche v. L. & N. W. Ry., 1 C. P. D. 286. 8 Murdock v. B. & A. R. R, 133 Mas- L6, 6 Am. & Eng. R. R. Cas. 406. * 10 Ex. 45. 4G8 TORTS. discharged, but a rule was made absolute to reduce this damages to £34 19s., it being held that damages for loss of profits are consequential, otherwise a passenger, whose time or business is more valuable than that of another, would, for precisely the same injury, receive greater remuneration than another. II. DAMAGES FOR TORTS. In actions sounding in tort, the plaintiff is entitled to recover a fair pecuniary compensation for the wrong done to him, the quantum of which compensation is to be determined by the jury in the exercise of a reasonable discretion, subject to review by the court, if that quantum is so disproportionately large or small as to show that the jury must necessarily have been influenced by improper motives, or must have proceeded upon a wrong principle. 389. There was formerly no certain rule as to the measure of damages in actions sounding in tort ; thus, in Eavenscroft v. Eyles, 1 Wilmot, C. J., said, " in actions on the case, the damages are totally uncertain and at large." The modern theory is, that the damages should amount to a pecuniary compensation for the wrong done to the person injured. 2 It is the duty of the judge, at the trial, to specifically instruct the jury as to the measure of damages, and not to leave to them an arbitrary discretion in the ascertainment of the amount of the damages. 3 The measure of damages is to be decided by the court, but the quantum of damages is to be fixed by the jury, subject to the review of the court 1 2 Wils. 295. * Bussy v. Donaldson, 4 Dall. 206 ; Walker v. Smith, 1 Wash. C. C. 152 ; Lockwood v. Allen, 7 Mass. 254 ; Dexter v. Spear, 4 Mason 115 ; St. L., I. M. & S. Ry. v. Cantrell, 37 Ark. 519. J P. R. R. v. Books, 57 Penna. St. 339 ; P. R. R. v. Zebe, 33 Id. 318 ; P. R. R. v. Vandever, 36 Id. 298 ; P. R. R. v. Butler, 57 Id. 335 ; Mansfield C. & C. Go. v. McEnery, 8 Weekly Notes of Cases (Penna.) 81. DAMAGES. 469 upon the principles hereinafter stated. 1 While the measure of damages is compensation for the pecuniary loss suffered by the party for whose benefit the action is brought, yet the jury should take a reasonable view, and should not give more than a fair compensation ; 2 thus, in Armstrong v. S. E. Ry., 3 Parke, J., directed the jury that " it would be most unjust if, whenever an accident occurs, juries were to visit the unfortunate cause of it with the utmost amount which they think an equivalent for the mischief done. * * * You are not to consider the value of existence as if you were bar- gaining with an annuity office. * * * I advise you to take a reasonable view of the case, and give what you consider a fair compensation ;" and in Rowley v. L. & W. Ry., 4 Brett, J., reiterated these views, drawing attention to the point that the same rule as to the measure of damages must be applied in the cases of corporate and individual defendants, and that if juries do undertake to give " the fully calculated equivalent of the pecuniary loss sustained by the person on whose behalf the action is brought, * * * poor defendants will be ruined, and the defendants most liable to such actions will not be able to carry on their business upon the same terms to the public as now." Nevertheless, as Pollock, C. B., said, in Wilson v. N. Dock Co., 8 " cases of damage differ as much as the leaves of a tree differ from each other, or rather the leaves of different trees. No two are exactly alike, and one description cannot be applicable to all. No precise positive rule can embrace all cases, and, notwithstanding any rule 1 Walker v. Smith, 1 Wash. C. C. 152; I. C. R. B. v. Barron, •"> Wall, '.-(> ; M. C. R. R. v. Caruth, 51 Misa. 77 ; Morris v. C, I:. & W B B., « lam '■!'< ; K. P. Ry. v. Cutter, 19 Kans. 83; City of Delphi V. Lower?, 7 I 1ml. .'.'JO; O. & M. R. R. v. Collarn, 73 Id. 261. * Armstrong v. S. E. Ry., 11 Jur. 758 ; Rowley v. I- & W. By., 8 Ex. 221. 3 11 Jur. 758. 4 8 Ex. 221. & L. K. 1 Ex l'JO. 470 TORTS. of law that may be laid down, it must be admitted after all, that the question of the amount of damages is one for the jury, and the jury only, provided the law on the subject be properly laid down by the presiding judge, and then the amount of damages be left at large for the jury, we apprehend that a court would not interfere with their verdict because the jury had appar- ently come to some compromise among themselves, and bad not strictly observed the supposed rule of law." 390. It is the duty of the court to grant a new trial where the damages, in the opinion of the court, are so grossly excessive, that the jury must, in awarding such an amount, have been influenced by improper motives, or have proceeded upon a wrong principle ;* and it is also the duty of the court to grant a new trial where the damages are grossly inadequate; 2 and especially where the small amount of the damages, considered with reference to the testimony in the cause, shows that the jury have shrunk from deciding the issue submitted to them. 3 391. As a general rule the quantum of the damages is not subject to review in an appellate court. 4 The jury are not to be permitted to increase the damages by including interest from the time of the injury upon that sum which they determine to be the pecuniary 1 Creed v. Fisher, 9 Ex. 472; Lambkin v. S. E. Ry., 5 App. Cas. 352; Cole- man v. Southwick, 9 Johns. 45 ; B.. P. & C. Ry. v. Pixley, 61 Ind. 22; O. & M. R. R. v. Collarn, 73 Id. 261; Fairman v. Lauman, Id. 568; Delphi v. Lowery, 74 Id. 520 ; Thurston v. Martin, 1 Mason 197 ; Knight v. P., S.& P.R. R., 57 Me. 202 ; Gale v. N. Y. C & H. R. R. R., 76 N. Y. 594 ; M., K. & T. R. R. v. Weaver, 16 Kans. 456 ; Berry v. C. Ry., 40 Iowa 564; Pry v. H. & St. J. R. R , 73 Mo. 123 ; I. & G. N. R. R. v. Stewart, 57 Tex. 166 ; P., C. & St. L. R. R. v. Sponier, 85 Ind 165, 8 Am. & Eng. R. R. Cas. 453. J Phillips v. S. W. Ry., 4 Q. B. D. 406. 3 Springett v. Ball, 4 F. & F. 472. * W. Ry. v. McDaniels, 107 U. S. 454; W., St. L. & P. Ry. v. Peyton, 106 111. 524 ; I. C. Ry. v. Frelka, 110 Id. 498 ; Pabst v. B. & O. R. R., 2 MacArthur (D. C.) 42. EXEMPLARY DAMAGES. 471 compensation due by the defendant to the plaintiff; 1 nor are the jury to be permitted to include the plain- tiff's counsel fees in the damages awarded to him. III. EXEMPLARY DAMAGES. Exemplary or punitive damages can be recovered where the wrong has been done under circumstances of wanton violence and ojypres- sion on the part of the railway, as evidenced by the character of the act, and by the fact that the particular act has been done under an antecedent authorization, or has been subsequently ratified, either expressly, or impliedly by the retention in the service of the servant whose wrongdoing has caused the injury. 392. Where the wrong has been done under circum- stances indicating wantonness, violence, and oppression upon the part of the wrongdoer, exemplary damages are recoverable; 2 but such damages are not recoverable against a railway unless the injury is the result of the authorized or ratified misconduct of the servants of the railway. 3 There are some cases which hold that where a person is injured by gross negligence on the part of the railway, he may recover exemplary damages; 1 but 1 Mowry v. Whitney, 14 Wall. 434; Weir v. Alleghany, 95 Penna. St. 413; P. S. Ry. v. Taylor, 104 Id. 300; C. R. R. v. Sears, 6ti Ga. 409. 2 Bell v. Midland Ry., 10 C. B. N. S. 287, 100 E. C. L. ; Emblen p. Myers, 6 H. & N. 54; Tracy v. Swartwout, 10 Pet. 81 ; P. R. R. v. Kelley, 3] Penna. St. 372 ; P. R. R. v. Books, 57 !d. 339. 3 M. & St. P. Ry. v. Arms, 91 U. S. 489; Day ti.Woodworth, L3 How 871 P , W. & B. R. R. v. Quigley, 21 Id. 213 ; W. U. T. < io. v. Eyster, 91 I r. 8. 495, note; N. O., J. & G. N. E. R. v. Hurst, 36 Miss. 660; B.&O. R. R. v. Blocber, 27 Md. 277; Goddard v. G. T. By., 59 Me. 202; C. 8. Ry. v. Steen, 42 Ark. 321, 19 Am. & Eng. R. R. Cas. 30; I. & St. L. R. R. P.Cobb, 68 111. 58; 1 1 M., K. & T. R. R., 59 Mo. 27, 8 Am Ry. Rep. 462; K. P. Ry. v. Lundin, 8 Colo. 94; L. K. & GL 8. R. R. v. Guinan, 11 Lea (Tenn.) 98; 8. R. R. v. Ken- drick, 40 Miss. 371; Ackerson v. E. R. R, 8 Vroom 254; Porter v. Same, Id. 2dl ; C, St. L. & N. O. R. R. v. Bcnrr, 59 Miss. 456, 6 Am. & Eng R i: I as. 341 ; P.,F. W. & C. R. R. v. Slusser, 19 Ohio St. L57 ; Hamilton >■■ Third \v.-. R. R., 53 N. Y. 25. * Hopkins v. A.& St. L R. U, 36 \. H. 9; A. & Q W. Ry. v. Dnnn, 19 Ohio St. 162; M. & M. R. R. v. Ashcroft, 48 Ala. 15; Varillat v. S. <). A 0, 472 EXEMPLARY DAMAGES. considering the want of any intelligible distinction be- tween negligence and gross negligence, and bearing in mind the principles hereinbefore stated, which deter- mine the responsibility of railways for the acts of their servants, the better doctrine is that a railway is not to be held liable in exemplary damages for injuries caused by the negligence of its servant, unless it be shown that the servant's act was wilful in its character, and was either authorized or ratified by the railway, nevertheless con- ceding that such authorization or ratification can be evi- denced either by an expressed order to do the act, or an expressed approval of its commission, or by an antece- dent retention of a servant of known incompetency, or by a subsequent retention or promotion of the negligent servant. 1 [V. THE MEASURE OF DAMAGES IN CASES OF INJURIES NOT CAUSING DEATH. The measure of damages in case of injuries not causing death is, in general, compensation for bodily and mental pain and suffering, present and future, and for loss of earnings since the injury and for loss of future earning power, and reimbursement of actual ex- penditure, or legal liability incurred, for medical treatment and nursing. 393. Actions sounding in tort for injuries to the per- son being founded, not upon the damage only, but upon the unlawful act and the consequent damage, the plain- tiff cannot bring more than one action therefor against the same defendant, and therein he may recover both R. R , 10 La. An. 88; K. C. R. R. v Dills, 4 Bush (Ky.) 593; Taylor v. G T. Ry., 48 N. H. 305 ; L. & N. R. R. v. McCoy, 81 Ky. 403, 15 Am. & Eng. R. R. Cas. 277 ; C. St. R. R. v. Steen, 42 Ark. 321, 19 Am. & Eng. R. R. Cas. 30. ' Cle S horn v. N. Y. C. & H. R. R. R., 56 N. Y. 44 ; Hagan v. P. & W. R. R., 3 R. I. 88. DAMAGES. 473 present and prospective damages. 1 Upon this principle the plaintiff may recover for future physical suffering and loss of earning power where the apprehended con- sequences are such as in the ordinary course of nature are reasonably certain to ensue, but there can be no re- covery in damages for merely possible consequences. 2 The mental suffering for which the plaintiff can recover is that which is connected with and follows the injury ; 3 and the plaintiff may recover for any injury to health resulting from exposure after the accident; 4 and in proof of his loss of earnings since the injury, the plain- tiff may show that he was engaged in a particular busi- ness, and that the necessary effect of his injury was to disable him from attending to his business, and thereby cause a pecuniary loss to him ; 5 but if the business con- ducted by the person injured be prohibited by law, he cannot recover for his inability to continue it. 6 394. It is in general held that the damages recover- able include compensation for bodily and mental pain and suffering, present and future; reimbursement of actual expenditure for, or legal liability incurred for, medical treatment and nursing ; and compensation for loss of earnings since the injury, and for loss of future earning power. 7 1 Hodsoll v. Stallebrass, 11 Ad. & El. 301, 39 E. C. L. J Strohm v. N. Y., L. E. & W. R. R, 96 N. Y. 305 ; Delie v. C. & N. W. 1 ty, 51 Wise. 400; Curtis v. R. & S. R. R, 18 N. Y. 534; Filer v. N. Y. C. R. R, 49 Id. 45; Fry v. D. & S. W. Ry., 45 Iowa 416; B. S. It. It. V. Hams, 67 Ala. 6. 3 I. & St. L. R. R. v. Stables, 62 111. 313; Porter v. II. & St. J. It. It., 71 Mo. 66, 2 Am. & Eng. R. It. Cas. 44. * Ehrgott v. The Mayor, 96 N. Y. 264. 5 Wade v. Leroy, 20 How. 34; Nebraska City v. Campbell, 2 Black (S. C.) 590. 6 Jacques v. B. H. R. R., 41 Conn. 61. 7 Phillips v. S. W. Ry., 4 Q. B. D. 406, 5 Id. 85, n c. 1'. 1 1 ,280 ; Lain- v. Colder, 8 Penna. St. 479; P. It. R. v. Allen, 63 U. 276; P. R. R V. Boob, 57 Id. 339; P. & O. Canal Co. v. Graham, 6:i Id. 290; I. C. R R V. Barron, 5 471 INJURIES NOT CAUSING DEATH. 395. The damages awarded to the injured plaintiff are not to be diminished by his receipts from an acci- dental insurance policy, because the insurer's contract of indemnity, and not the contingency of the accident, is the cause of his receiving the avails of the policy; 1 nor are the damages to be diminished by the injured person's continued receipt of full wages from his em- ployer during the period of his incapacity to labour. 2 396. There is a recent English case which illustrates the rule of law as to damages for personal injuries, and which is worthy of careful consideration. In Phillips v. S. W. Hy., 3 the plaintiff was an eminent London phy- sician of middle age and of robust health, making from the practice of his profession an average income of £5,000. Having been injured in a railway accident, he underwent a great amount of pain and suffering; at the time of the first trial, sixteen months after the acci- dent, his condition was apparently helpless and hopeless, and he had then incurred expenses for medical treat- ment amounting to £1,000. Field, J., in substance directed the jury not to attempt to give an exact equiv- alent for the injury sustained, but to bring their reason- able common sense to bear, and to consider that while the plaintiff might die at any time, and while many things might happen to prevent his continuing in prac- WaU. 90 ; Eansom v. N. Y. & E. R. E., 15 N. Y. 415 ; Curtis v. E. & S. E. E., 18 Id. 534; S. & N. A. E. E. v. McLendon, 63 Ala. 266; Whalen v. St. L., K. C. & N. Ey., 60 Mo. 323; O. & M. Ry. v. Dickerson, 59 Ind. 317 ; P., C. & St. L. Ey. v. Sponier, 85 Id. 165, 8 Am. & Eng. E. E. Cas. 453; Porter v. II. & St. J. R. R., 71 Mo. 66, 2 Am. & Eng. E. E. Cas. 44; Totten v. P. E. E., 11 Fed. Eep. 564; St. L., I. M. & S. Ey. v. Cantrell, 37 Ark. 519, 8 Am. & Eng. E. R. Cas. 198; Klutts v. St. L., I. M. & S. Ey., 75 Mo. 642, 11 Am. & Eng. E. E. Cas. 639 ; Davis v. C. E. E., 60 Ga. 329 ; W. & A. E. E. v. Drysdale, 51 Id. 644; P. E. E. v. Spicker, 105 Penna. St. 142; Geveke v. G. E. & I. Ey., Mich. , 22 Am. & Eng. E. E. Cas. 551. 1 r.radburn v. G.W. Ey., L. E. 10 Ex. 1 ; B. & O. R. R. tt Wightman, 29 Grat. 431. a O & M. Ry. v. Dickerson, 59 Ind. 317. 8 4 Q. B. D. 406. DAMAGES. 475 tice, yet, on the other hand, he might continue to live for many years, and that they must give him fair com- pensation for the pain, inconvenience, loss of enjoyment, loss of income up to the time of the trial and prospective loss of income in the future. The jury having found for the plaintiff in £7,000, the plaintiff moved for a new trial for insufficiency of damages and also on the ground of misdirection as having led to an insufficient assessment of damages. In the Court of Queen's Bench it was held, Cockburn, C. J., delivering judgment, that Field, J., had correctly directed the jury, but the rule for a new trial was made absolute upon the other ground, the Lord Chief Justice, after referring to the rule laid down by Brett, J., in Rowley v. L. & N. W. By., 1 saying: "we think that a jury cannot be said to take a reasonable view of the case unless they consider and take into account all the heads of damage in respect of which the plaintiff complaining of a personal injury is entitled to compensation. These are the bodily injury sustained, the pain undergone, the effect on the health of the sufferer, according to its degree and its probable duration as likely to be temporary or permanent, the expenses incidental to attempts to effect a cure or to lessen the amount of injury, the pecuniary loss sus- tained through inability to attend to a profession or business as to which again the amount of injury may be of a temporary character or may be such as to in- capacitate the party for the remainder of his Life. I f a jury have taken all these elements of damage into con- sideration, and have awarded wli.it they deemed to be fair and reasonable compensation under all the circum- stances of the case, a court ought not, unless under very exceptional circumstances, to disturb their verdict." 1 L. R. 8 Ex. 221. 476 INJURIES NOT CAUSING DEATH. He distinguished the cases of Randall v. Hay ward, 1 and Forsdike v. Stone, 2 upon the ground that they were ac- tions for slander in which the jury may consider, not only what the plaintiff ought to receive, but also what the defendant ought to pay, and he added: "we think the rule contended for has no application in a case of personal injury, and that it is perfectly competent to us if we think the damages unreasonably small to order a new trial at the instance of the plaintiff. There can be no doubt of the power of the court to grant a new trial where, in such an action, the damages are excessive. There can be no reason why the same principle should not be applied where they are insufficient to meet the justice of the case." The defendant having appealed, the judgment of the Court of Appeal affirming the Queen's Bench Division was delivered by James, L. J. 3 The Lord Justice said: "we agree that judges have no right to overrule a verdict of the jury as to the amount of damages merely because they take a different view, and think that if they had been the jury they would have given more or would have given less, still the verdicts of juries as to the amount of damages are subject, and^ must, for the sake of justice, be subject to the supervision of a court of first instance, and, if necessary, of a court of appeal in this way; that is to say, if, in the judgment of the court, the damages are unreasonably large, or unreasonably small, then the court is bound to send the matter for reconsideration by another jury." The di- rection of Field, J., was substantially approved. The case was tried a second time before Coleridge, L. C. J., 4 who instructed the jury, that while it was fair and reasonable that the defendant should pay to the plain- tiff, by way of compensation for the injury which he 1 5 Bing. N. C. 424. » L. E. 3 C. P. 607. » 5 Q. B. D. 85. * 5 C. P. D. 280. DAMAGES. 477 had sustained, the amount of compensation for it was to be such as the jury might think would be fair and reasonable, and that there must be taken into account as elements of compensation the bodily pain and suffer- ing which the plaintiff had endured, the loss of his pro- fessional income from the time of the accident to the time of the trial, and the loss of future income, basing the estimate upon the proved net professional income of the plaintiff, but remembering that that amount in- cluded certain large presents or special fees. It had been proven that the plaintiff, at the time of the acci- dent, was in the receipt of a private income irrespective of his professional earnings amounting to between £3,000 and £4,000 a year, and in his summing up the Lord Chief Justice omitted to refer to that source of income. The jury found a verdict of £16,000 for the plaintiff, and the defendant having moved for a new trial, on the ground of misdirection, the Common Pleas Division re- fused the rule, Grove, J., saying: "the plaintiff is en- titled to receive at the hands of the jury compensation for the pain and bodily suffering which he has under- gone, for the expense which he has been put to for medical and other necessary attendance, and for such pecuniary loss as the jury (having regard to his ability and means of earning money by his profession at the time) may think him reasonably entitled to." The de- fendant then took the case to the Court of Appeal, which sustained the court below in its refusal of a m-w trial, Bramwell, L. J., saying: "I have tried, as judge, more than a hundred actions of this kind, and the di- rection which I, in common with other judges, have been accustomed to give the jury has been to the fol- lowing effect: 'You must give the plaint id' a compensa- tion for his pecuniary loss; you must give him a compensation for his pain and bodily suffering; of 478 INJURIES NOT CAUSING DEATH. course it is almost impossible for you to give to an in- jured man what can be strictly called a compensation, but you must take a reasonable view of the case and must consider under all the circumstances what is a fair amount to be awarded to him.' I have never known a direction in that form to be questioned. * * * It is argned that it lias an unjust operation for the following reason : two passengers are carried upon the same journey for the same fare. If one of them is injured he will ob- tain £10,000 damages against the company, whereas if the other meets with an accident he will obtain only £1,000. This result may be unreasonable as regards the passengers inter se, but it is not unreasonable as be- tween the company and the public. The company have taken their powers upon certain conditions, and one of them is that if they break their contracts to carry safely and securely, (which may happen without any moral blame attaching to them), they shall make adequate compensation to the person injured. It may be that the passenger who recovers £10,000 has paid too little for his ticket, and that the passenger who recovers £1,000 has paid too much; nevertheless together they have paid what is a compensation to the company for the risk which they undertake." Brett, L.. J., said: "the action is for breach of a contract to carry a pas- senger safely and securely, and the only damages which can be obtained are damages for the breach of that con- tract. The fundamental proposition, no doubt, is that the plaintiff is to receive such damages as will compen- sate him for the injury ensuing from the breach of the contract. That injury is of a complicated nature, the plaintiff has received a bodily hurt and he has also sus- tained a pecuniary loss." * * * Lord Coleridge "in effect told the jury that the compensation was to be such as they might think fair and reasonable, but that they DAMAGES. 479 must not attempt to give an absolutely perfect compen- sation with respect to the pecuniary loss. I apprehend that both these propositions are correct, and that the reason why this general mode of leaving the question to the jury is right is that human ingenuity has not been able to devise a more correct proposition, and that if the judge tries to make a perfect proposition he either states something which is wrong, or omits to state something which ought to be stated." The Lord Justice then re- ferred to Kowley v. L. & N. W. Ey., 1 and added : " it has been long recognized as a proper mode of summing up to tell the jury to give such compensation as under all the circumstances they may think fair and reason- able, and at the same time, in order to assist them, to point out some circumstances which they ought to con- sider. When the jury have to give compensation for the loss of a professional or trading income, the chief points to be considered are the amount of that income and of what it is made up. It has been in effect sug- gested by the counsel for the defendants that the amount of the income at the time of the accident ought not to be taken into account. This suggestion seems to me to be erroneous. * * * If no accident had happened, nevertheless many circumstances might have happened to prevent the plaintiff from earning his professional in- come. He may be disabled by illness; he is Bubjeci to the ordinary accidents and vicissitudes of life, and if all those circumstances of which no evidence can be given are looked at it would be impossible to exactly estimate them. Yet if the jury wholly pass over them liny will go wrong, because those accidents and vicissitudes ought to be taken into account. It is true tint the chances of life cannot be accurately calculated, but the judge must tell the jury to consider them in order thai they 1 L. K. 8 Ex. 221. 4S0 DUTY OF PERSON INJURED. may give a fair and reasonable compensation. In my opinion it would be right that a jury should give the same amount to a workingman and to a person of great wealth for personal injury, if that is the same, and if the accompanying suffering is the same, and that each should receive the expenses which he has properly in- curred, but that in estimating the pecuniary loss each should receive as nearly as possible only the amount of the loss which he has actually sustained." Cotton, L. J., concurred. As to the condition of the plaintiff's health at the time of the second trial and the prospect of his ultimate recovery the case as reported is ambig- uous. Lord Coleridge referred in his direction to the jury to the "probability that for a year and a half or two years more the plaintiff would be debarred from following his profession." Grove, J., in refusing the rule for a new trial, said : "the injury which he has sus- tained will, in all human probability, deprive him of the power of ever resuming his practice." The person injured is bound to exercise for his cure and treatment the care of a prudent man, 397. The party injured is bound to take such care of himself after the accident as a prudent man would take under the circumstances, but he is not bound to employ a surgeon of the highest skill, nor is he an in- surer of the success of the medical treatment; 1 yet where the person injured had disregarded the advice of his medical attendants to abstain from business for two years, and had, because of such disobedience, become permanently incapacited from doing business, whereas, 1 Klutts v. St. L., I. M. & S. Ry., 75 Mo. 642, 1 1 Am. & Eng. R. R. Cas. 639 ; Nagel v. M. P. Ry., Id. 653, 10 Am. & Eng. R. R. Cas. 702 ; Sauter v. N. Y. C. & H. R. R. R., 66 N. Y. 50 ; Lyons v. E. Ry., 57 Id. 489 ; P. P. C. Co. v. Bluhm, 109 111. 20, 18 Am. & Eng. R. R. Cas. 87 ; Allender v. C, R. I. & P. R. R., 37 Iowa 264. DAMAGES TO HUSBAND, ETC. 481 if he had rested, he would probably have regained his health, the Common Pleas refused to disturb a verdict in his favour for compensatory damages. 1 The measure of damages in a husband's suit for injuries to his wife is compensation for the loss of his wife's society and services, and reimbursement for the necessary expenses of her medical treatment 398. Where a husband sues for injuries to the person of his wife, he is entitled to recover for the loss of his wife's society and services and for the necessary ex- penses of her medical treatment. 2 Where the suit is brought on the wife's behalf to recover for her personal injuries, there can be no recovery for any loss which the husband may have sustained, and for which he alone could bring suit, such as a diminution of the wife's earning power, or the expenses of her medical treatment, but the recovery can only be for the physical injury done to the wife. 3 TJie measure of damages in a parent's or master's suit for injuries to his child or servant is compensation for loss of service during the minority of the child or the period of service, and reimbursement for the necessary expenses of medical treatment. 399. Where a parent or master sues for injuries done to the person of a child or servant, the plaintiff can only recover for the loss of service during the period of service, or during the minority of the child, and for 1 Saunders v. L. & N. W. By., 8 0. B. N. S. 887, 98 E. C. L. 2 King v. Thompson, 87 Penna. St. 365; P. B. R. v. Goodman, 62 1. 1 829 , Pack v. The Mayor, 3 Comst. 489 ; Xcir v. W. P. Iiy., 1 2 M<>. Lpp. 86 ; < iregin v. B. C. R. B., 83 N.Y. 595. 3 Dengate v. Gardiner, 4 M. A. W. 6; King v. Thompson, 87 Penna. M B. C P. Ry. v. Kemp, 61 Md. 74; Fuller p. X. R. U.. 21 I fcmn. 557 ; V < '. By. v. Mills, 61 Md. 355, 19 Am. & Eng. B. B. Gas. 160; Klein <■. Jewett, 26 X J. Eq. 474; Tuttle v. C, B. I. & P. Ry., 42 [owa r .is. 31 482 DAMAGES actual expenditure and legal liability incurred for the medical treatment and care of the child or servant. 1 V. THE MEASURE OF DAMAGES IN CASES OF INJURIES CAUSING DEATH. In actions to recover damages for injuries causing death, if the statute authorizing the action does not prescribe any other measure of dam- ages, the damages are in general to be assessed on the basis of the pecuniary loss caused by the death to the persons for whose benefit the action is brought. 400. In actions to recover for death the terms of the statute authorizing the action are in general decisive of the right to sue and the measure of damages. In case of death or personal injury, resulting from negli- gence on the part of the railway, where the parties for whose benefit the action is brought fail to show any pecuniary injury to themselves, nominal damages are recoverable. 2 Of course, any pecuniary loss to the person for whose benefit the action is brought and directly resulting from the death should be taken into consideration by the jury ; thus, in Pym v. G. N. Ky., 3 the plaintiff sued as the widow and administratrix of her husband, who had never been in any profession or business and was of independent property. The de- ceased by will had so settled his property, which pro- duced an income, of £4,000 annually, that in case of his death £800 was to be annually paid to his younger children, and the rest to the eldest son, charged with 1 P. R. R. v. Kell y, 31 Penna. St. 372 ; Frick v. St. L., K. C. & N. R. R., 75 Mo. 542; Smith v. St. J. & II. R. R., 55 Mo. 556; St. L., I. M. & S. Ry. v. Freeman, 36 Ark. 41. 2 A., T. & S. F. R. R. v.Weber, 33 Kans. 543, 21 Am. & Eng. R. R. Cas. 418 ; Ihl v. 42d St. R. R., 47 N. Y. 317 ; C. & A. R. R. v. Shannon, 43 111. 338 ; (', & N. W. R. R. v. Swett, 45 Id. 197 ; Chicago v. Schollen, 75 Id. 468. • 2 B. & S. 750, 110 E. C. L. ; 4 B. & S. 396, 116 E. C. L. IN CASE OF DEATH. 483 the payment of the £800 and of a jointure to the widow of £1,000. At the trial, Cockburn, C. J., directed the jury: "if, after making allowance for what the de- ceased would naturally have expended on himself, they thought that a portion of his income beyond the £1,800 a year, to which his widow and eight younger children became entitled at his death, would have been from time to time set aside by him for the benefit of his family, or appropriated to their education and advance- ment in life, and would thus have secured to them ad- vantages, which by his death they had lost, that would constitute such pecuniary loss and damage as would enable them to find a verdict for the plaintiff." The jury found for the plaintiff in £13,000, £1,000 for the widow and £1,500 for each of the younger children. The defendant having obtained a rule in pursuance of leave reserved to enter a verdict for the defendant, or a nonsuit on the ground that the evidence established no cause of action, or for a new trial because of excessive damages, the rule on the former ground was dis- charged, and on the latter ground the verdict having, by consent of the plaintiff, been reduced to £9,000, that rule was also discharged. The defendant having ap- pealed to the Court of Exchequer Chamber, the judg- ment of the Queen's Bench was affirmed, it being held that an action under the statute is maintainable where the decedent could have maintained no action if lie had survived the injury, the condition in the statute haying reference not to the nature of the loss or the injury sustained, but to the circumstances under which I In- bodily injury arose, and the nature of the wrongful act, neglect, or default complained of; and thai while the damages must be based on a pecuniary loss, the ex- tinction of a reasonable expectation of pecuniary ;i. Smith l"::. M N. Y. 810; Drew t>. Sixth Ave. R. R.,26 Id. 49; Ilil v. 42d St. R. R., 47 [d.817; Chicago v. Major, 18 111. 349; Chicago v. Bcholton, 76 1«1. 469; I . R. & Bar- ker, 39 Ark. 491, 19 Am. & Eng. R. R. Cas. 196; Potter < C. A V W. Ry, 22 Wise. G15 ; Seaman v. F. L. & T. Co., 15 Id. 578. 490 DAMAGES- necessary cost of the child's maintenance. 1 Where the child is of age at the time of his or her death, or if under age, has not been living under the parental roof, the burden is on the plaintiff of proving a reasonable expectation of his receiving a pecuniary benefit from the continued life of the child ; 2 but where the child lives under the parental roof, and is under age at the time of his death, there is a presumption of pecuniary loss to his parents resulting from his death. 405. Where a husband sues for his wife's death, or where children sue for their mother's death, the hus- band and children are entitled to recover, not only for any pecuniary loss directly resulting from the death of the wife and mother, as, for instance, where she is in receipt of an annuity which has been appropriated to the payment of family expenses, and which terminates with her death, but also for the material loss resulting from the deprivation of her services to her family. 3 This question is fully considered in the case of Lett v. St. L. & O. Ry., 4 where all the English authorities were reviewed, especially in the learned and elaborate judgment of Patterson, J., and the conclusion reached that the death of a wife and mother is such a material loss as entitled the husband and the children living at home to a substantial recovery in damages. In B. & O. It. K. v. State to use of Mahone, 5 where adult chil- 1 The Penna. Co. ». Lilly, 73 Ind. 252 ; E., K. I. & St. L. Ey. v. Delaney, 82 HI. 198. 2 P. E. E. v. Adams, 55 Penna. St. 499; N. P. E. E. v. Kirk, 90 Id. 15; P. E. E. fl.Kellar, 67 Id. 300. 3 Chant v. S. E. Ey., Weekly Notes (English) for 1866, p. 134; Wilkins v. Day, 12 Q. B. D. 110; Lett v. St. L. & O. Ey., 11 Ont. Ap. 1, 21 Am. & Eng. E. E. Cas. 105; P. E. E. v. Goodman, 62 Penna. St. 329 ; Mclntyre v. N. Y. E. P.., 37 X. Y. 287 ; Woodward v. C. & N. W. Ey., 23 Wise. 400 ; cf, Dick- ins v. N. Y. C. E. E., 23 N. Y. 158. * 11 Ont. Ap. 1, 21 Am. & Eng. E. E. Cas. 165. 6 63 Md. 135, 21 Am. & Eng. E. E. Cas. 202. foe wife's death. 491 dren sued for damages for the death of their mother, it was held that the plaintiffs could only recover for the loss of a reasonable expectation of pecuniary benefit from the continuance of her life, and that those of the children who lived apart from her, and who derived no pecuniary benefit from her, could not be compensated in damages, while, on the other hand, a married daughter, with whom she lived, and in whose household she performed domestic services, was entitled to be compensated for her death. 406. Where a widow, or children, sue for the death of their husband, or father, they can recover for the loss of any reasonable expectation of pecuniary benefit from the death of the husband or father. 1 Obviously the loss suffered by the widow, or children, in the death of the husband, or father, is that amount which the deceased would probably have earned by his intellectual, ■ or bodily labour, in his profession, or business, during the residue of his life, and which would have gone for the benefit of his children, or widow, taking into con- sideration his age, ability, and disposition to labour, and his habits of living and expenditure. 2 Where a widow sues for damages for the death of her husband, her recovery is not barred by the fact that at the time of his death she was, by agreement, separate. 1 from him. 8 407. Where the statute which creates the right of recovery permits the suit to be brought for the benefit of the next of kin (other than parents, husband, wife, or children), they can recover damages base. I upoo an » Armsworth v. S. E. By., 11 Jar. 758; Gillard v. L. & Y. By., 12 L. T. 866; Blake v. M. C. By., 18 Q. B. 93, 83 E C. L. ; P. B. B.«. Vandiver, 86 Penna. St. 298; P. E. E. v. Henderson, 61 II. 315; C. B. B.». knn trong,52 td II. & B. T. E. E. v. Decker, 84 Id. 4 1 9. 2 P. R. E. w.Bntler, 59 Penna. Si 335; B.&0. R R. < Weightman, 29 Gratt. 431 ; C. R. R. ». Roach, 64 Ga. 635, B Am. & Eng. B. B. I fat 7'.' ; B. & O. Ry. v. State, 41 Md. 268. s D. & W. E. R. v. Spicker, Gl Tex. 427, 21 Am & Eng. B B Gas. 1' <>. 492 DAMAGES estimate of their reasonable expectation of pecuniary benefit from the continuance of the life of the deceased. 1 408. Where personal representatives sue for the benefit of the decedent's estate, they can recover for what would be the probable amount of the accumula- tions of their decedent during what would probably have been his lifetime. 2 409. A bastard is not a child within the meaning of the statutes authorizing a recovery of damages in case of death. 3 410. The ground of a recovery of damages in an action for the death of any one, being the pecuniary loss to those for whose benefit the action is instituted, it is obvious that the personal sufferings of the deceased are not an element of damage ; 4 nor can the plaintiff's disbursements, or legal liability, incurred for the nurs- ing of, and medical attendance upon, the deceased be taken into consideration in estimating the plaintiff's damages, for the cause of injury was the death. 5 411. It is clearly settled that no damages can be re- covered by way of compensation for any merely senti- mental loss, or by way of solatium for the sorrow and grief which the death has caused to the surviving mem- bers of the family of the deceased ; thus, in Blake v. Mid- land Ry., 6 the plaintiff having brought suit under the statute as administratrix of her husband, Park, B., di- rected the jury that beyond the pecuniary injury they might giveher compensation for thebereavement she had 1 Scheffler v. M. & St. L. Ry., 32 Minn. 125, 19 Am. & Eng. R. R. Cas. 173. 2 P. R. R. v. McCloskey, 23 Penna. St. 526. 3 Dickinson v. N. E. Ry., 2 H. & C. 735 ; Gibson v. M. Ry.. 2 Ont. (Can.) 658. 4 P. R. R. v. Zebe, 33 Penna. St. 318 ; Durkee v. C. P. R. R., 56 Cal. 388 ; contra., N. & C R. R. v. Stevens, 9 Heisk. (Tenn.) 12. * P. R. R. v. Zebe, 33 Penna. St. 318 ; P. R. R. v. Bantora, 54 Id. 495 ; C. & P. R. R. v. Rowan, 66 Id. 393. 6 18Q. B. 03, 83 E. C. L. FUNERAL EXPENSES. 40 3 sustained, but a rule for a new trial upon the ground of misdirection was made absolute, the court holding that the statute gives compensation only for the pecun- iary loss ; * nor are the mental sufferings of those for whose benefit the action is brought, elements of damage. 2 The damages in England do not include funeral expenses, etc., but in the United States disbursements for that purpose are generally per- mitted to be included. 412. It is settled in England, that the funeral ex- penses of the deceased, and the cost of the mourning dress provided for those for whose benefit the action is brought, are not elements of damage. The ground of that conclusion is thus stated by Willes, J., in Dalton v. S. E. Ry. : 3 "the subject-matter of the statute is compensation for injury by reason of the relative not being alive ; and there is no language in the statute re- ferring to the cost of the ceremonial of respect paid to the memory of the deceased in his funeral, or in putting on mourning for his loss." The same view is taken in Boulter v. Webster. 4 On the other hand, in the Ameri- can courts, it is universally held that funeral expenses are, in such cases, recoverable as damages. 5 I am not aware of any American case in which the question has been raised, as to the right to recover the cost of pro- 1 P. R. R. v. Zebe, 33 Penna. St. 318 ; Caldwell v. Brown, 53 Id. 453 ; Donal- son v. M. & M. R. R, 18 la. 280 ; I. C R. R. v. Weldon, 62 111. 290. * Blake v. M. Ry., 18 Q. B. 93, 83 E. C. L. ; P. R. R. v. Vandiver, 86 Penna. St. 298; The State v. B. & O. R. R, 24 Md. 84; K. P. Ry. v. Miller, 2 Colo. 442, 20 Am. Ry. Rep. 245; N. & C. R. E. v. Stevens, Beiak. (Tenn.) 12; Collir,9 1-. E. T. V. & G. R. R., Id. 841 ; B. & I >. R. R. '■ State to ose of Ma- hone, G3 Md. 135, 21 Am & Eng. R. R. Cas. 202; eontra, B. -V O. R. R. ft Noell, 32 Gratt. 394. » 4 C. B. N. S. 306, 93 E. CL. 4 1 3 W. B, 289. 5 P. R. R. v. Zebe, 33 Penna, St. 818; P. B. R- v. Pont..,,,, :, I 1. 1 195 ; 0. A P. R. E. v. Rowan, 66 Id. 393; Owen i>. Brockamidt, 5 1 Mo. 285 ; Mnrphy v. N. Y. C. & H. R. E. R-, 88 N. Y. 445, 8 An & Eng. R. R. Caa. 490; Rain t.St. L., f M. &. S. Ry., 71 Mo. 164, 6 Am. & Eng. B. R. Caa. 61ft 494 DAMAGES viding mourning for the family, but I cannot see why the same rule of decision should not be applied with regard to that as with regard to the expenses of the in- terment of the deceased, for funeral ceremonies, and the clothing of the family in black, are alike conventional expressions of respect for the deceased, and of sorrow for his loss, and neither can be said to be done in the performance of a duty imposed by law. In the United States no deduction is to be made in respect of insurance on the life of the person killed, but a different rule prevails in Eng- land. 413. In Hicks v. N. A. & H. Ky., 1 Campbell, C. J., directed the jury that in estimating damages for death they should deduct the amount of a policy recovered from an accident insurance company, and that they should also deduct the sums that the decedent or his family would probably have paid as premiums, had he lived, upon a policy of general life insurance, which he had in force at the time of his death. This case was cited with approval in Bradburn v. G. "W. Ry. 2 On the other hand, it has been held in America that no deduction is to be made in respect of policies of general life insurance. 3 VI. STATUTORY LIMITATIONS OF DAMAGES. 414. Damages recoverable in case of death are limi- ted by statute, in the hereinafter-mentioned States, to the following amounts: Colorado, $5,000; Connecticut, $5,000; Illinois, $5,000; Indiana, $5,000; Kansas, $10,000; Maine, $5,000; Massachusetts, $5,000 ; Min- nesota, $5,000; Missouri, $5,000; Nebraska, $5,000; 1 4 B. & 8. 403, note, 116 E. C. L. 2 L. B. 10 Ex. 1. 8 X. P. R. R. v. Kirk, 90 Penna. St. 15 ; Kellogg v. N. Y. C. & II. R. R. R., 79 N. Y. 72. STATUTORY LIMITATIONS. . 495 New Hampshire, $5,000 ; New York, $5,000 ; Ohio, $10,000; Oregon, $5,000; Utah, $10,000; West Vir- ginia, $5,000 ; Wisconsin, $5,000. 415. The Pennsylvania Act of 4 April, 18G8, having limited recovery as against railways to $3,000 in cases of personal injury not resulting in death, and to $5,000 in case of death, the Pennsylvania Constitution of 1873 prohibited any statutory limitation in either class of cases. In C. R. R. v. Cook, 1 the Act of 1868 was held to be unconstitutional, so far as it limited the damages recoverable in cases not resulting in death, for the reason that the right of recovering such damages being of common law, and not of statutory origin, could not, without violation of the Bill of Rights, be taken away or impaired by statute. This doctrine was reasserted in 13th & 15th St. P. Ry. v. Boudrou ; 2 but in C. & P. R. R. v. Rowan, 3 which was decided before the adoption of the Constitution of 1873, it was held that the right of recovering damages for death being of statutory origin, could be impaired or altogether taken away by subsequent statutes, and in P. R. R. v. Lang-don, 1 de- cided after the adoption of the Constitution of 1873, it was held that the limiting Act of 1868 was unaffected by that instrument, so far as regards a railway, which, by its formal acceptance of the Act of 1868, had made that Act a part of its charter, and thereby excepted itself from the operation of the Constitution of is?::. In P. &R. R. v. Boyer, 5 Gordon, J., intimated that a differ- ent conclusion would be reached in a case where the railway defendant had not formally accepted the Act of 1868. In Lewis est al, Receivers of the ?.& R. R. R. v. Hollahan, 8 it was held thai the Becond Bection of the 1 1 Weekly Notes of Cases (Penna.) 819. ' 92 Penna, 81 175. 3 66 Id. 393. * 92 Penna, Bt 21. ' 97 Penna. St 108. « 103 Penna. St. 425. 496 DAMAGES. Act of 4 April, 1868, has been repealed so far as regards the limitation of recovery against a railway, which had not, prior to the adoption of the Constitution of 1873, accepted that statute, and thereby made it a part of its charter, Sterrett, J., saying, in delivering the judgment of the court: "the case of P. R. R. vi Lang- don, cited and relied on by plaintiff in error, was well decided on other controlling questions, but we do not see our way clear to follow it as authority on the pre- cise constitutional question involved in this case. One of the questions in that case was as to the effect of acceptance by the company of the Act of 1868. In this case that question does not arise." In the later case of P., W. & B. R. R. v. Conway, 1 wherein the record failed to show that the railway had accepted the Act of 1868, Paxson, J., says, in his judgment : " it may not be out of place here to correct a misapprehension of the learned judge below in regard to P. R. R. v. Langdon, supra. That case has not been overruled as he supposes. Some of the reasoning by which it was supported is not sustained by the later case of Lewis v. Hollahan, and as my brethren are wiser than myself, I cheerfully submit to their views. Moreover, if, when the main question comes up again, P. R. R. v. Langdon shall be found to be a mistake, it will afford me pleasure to join in overruling it. But the question has not been here since, until the attempt to raise it in the present case. It is, therefore, premature to assume that P. R. R. v. Langdon has been overruled. This court has not yet said that the new Constitution, ipso facto, repealed charters." 416. Where suit is brought in New York upon a contract of carriage made in that State, and the breach 1 17 Weekly Notes of Cases (Penna.) 429. STATUTORY LIMITATIONS. 497 resulting in personal injuries to the plaintiff was in Pennsylvania, the statute of the latter State, limiting the amount of damages recoverable, will not be enforced in New York. 1 1 Dyke v. E. E. B., 45 N. Y. 113. 32 498 RELEASES. CHAPTER IX. EELEASES. I. The railway's contractual exemption from liability as a carrier. II. Eeleases by the plaintiff, or the person injured. I. THE RAILWAY'S CONTRACTUAL EXEMPTION FROM LIABILITY AS A CARRIER. In certain jurisdictio?is the law, from considerations of public policy, forbids railways, as carriers of passengers, to contract for, exemption from responsibility for the results of their negligence. 417. In certain jurisdictions, the law, from considera- tions of public policy, forbids railways, as carriers of passengers, to contract for exemption from responsi- bility for the results of their own negligence, or that of their agents or servants. In 1832, Mr. Justice Story, in his commentaries on the Law of Bailments, 1 stated, as the result of the cases up to that time with regard to the right of a common carrier of goods on land to limit his responsibility, that "Lord Coke declared it, in a note to Southcote's case, 2 and that it was admitted in Morse v. Slue. 3 It is now fully recognized and settled beyond any reasonable doubt," 4 and he added : "still, however, it is to be understood that common carriers cannot, by any special agreement, exempt themselves from all responsibility, so as to evade altogether the salutary policy of the common law. They cannot, therefore, by special notice, exempt themselves from 1 Sec. 549. 2 4 Rep. 84. 3 1 Ventr. 238. * Nicholson v. Willan, 5 East 507 ; Batson v. Donovan, 4 B. & Aid. 39 ; Riley v. Home, h Eingh. 217 ; Lowes v. Kermode, 8 Taunt. 146 ; Austin v. M S. & L. Ry., 10 C. B. 473, 70 E. C L. CONTRACTUAL EXEMPTION. 499 responsibility in cases of gross negligence and fraud, or, by demanding an exorbitant price, compel the owner of the goods to yield to unjust and oppressive limita- tions and qualifications of his rights." In Peek v. N. S. Ry., 1 Blackburn, J., admits the correctness of Judge Story's conclusions, from the decisions up to the date of the publication of bis book, saying, " in my opinion the weight of authority was, in 1832, in favour of this view of the law, but the cases decided in our courts between 1832 and 1854, established that this was not law, and that a carrier might, by a special notice, make a contract limiting his responsibility, even in the cases here mentioned of gross negligence, misconduct, or fraud on the part of his servants, and, as it seems to me, the reason why the legislature intervened in the Railway and Canal Act (1854), was because it thought that the companies took advantage of these decisions (in Story's language) 'to evade altogether the salutary policy of the common law.'" Lord Blackburn refers to cases which abundantly sustain this view. Under the Railway and Canal Act, 1854, 2 it is for the court to determine whether the conditions imposed by the car- rier, limiting his liability for the transportation of goods, be or be not just and reasonable, but no statute having thrown a similar protection over contracts for passenger carriage, the law in England as to them is, that the parties are free to make their own contracts, and that the railway may stipulate l''->r exemption from liability for all injuries to a passenger, whether caused by the negligence of its servants or otherwise; thus, in McCawley v. The F. Railway, 3 it was held on demurrer, that a plaintiff travelling under a free pass, which, in terms, stipulated that the "plaintiff should 'travel al his own risk," cannot recover for injuries caused by the MOH. L. 473. " 17 & 18 Vict. c. 81. *L.B JQ.B.57. 500 RELEASES. railway's "gross and wilful negligence." In Hall v."N. E. By., 1 the plaintiff, who travelled under a drover's ticket issued by the N. B. By., for a journey from An- gerton to Newcastle, the line of the N. B. By. termina- ting at Morpeth, where the line of the defendant com- pany began, the ticket stipulating the plaintiff should travel at his own risk, and the plaintiff having been injured between Morpeth and Newcastle on the defend- ant's line, owing to the negligence of the defendant's servants, it was held that the ticket bound the plaintiff to travel at his own risk during the whole of the jour- ney, and that the defendant was protected upon its line as effectually as the N. B. By. was protected upon its line. In Gallin v. L. & N. W. By., 2 the plaintiff travelled on the defendant's line as a drover with cat- tle, under a pass stipulating that he should travel at his own risk, and the train arrived at its terminus after dark, and the plaintiff's car was stopped on a bridge with a low and dangerous parapet, the plaintiff, in alighting, fell over the parapet and was injured, and it was held that the terms under which the plaintiff trav- elled exempted the railway from liability to him, not only during the actual transit, but also while he was leaving the railway premises. In Burke v. S. E. By., 3 the plaintiff bought from the railway a book of coupons entitling him to travel between London and Paris. On the second page of this book there was printed a con- dition limiting the railway's responsibility to its own trains, and the plaintiff having been injured in a French train, the railway rested its defence on the con- dition. It was held that the whole book was the con- tract accepted by the plaintiff, and that he could not reject the condition exempting the railway from liability. 1 L. R. 10 Q, B. 437. 2 L. R. 10 Q. B. 212. '5C.P.D. 1. CONTRACTUAL EXEMPTION. 501 Henderson v. Stevens, 1 was distinguished on the ground that in that case the contract was printed on the front of the ticket, and the notice limiting the defendant's liability was printed on the back of the ticket, and was not proved to have been brought to the attention of the plaintiff. 2 418. The weight of American authority, however, is decidedly in favour of the proposition, that, while a carrier of goods may by contract, or even by notice brought home to the shipper of goods, limit his lia- bility, yet he cannot by stipulation exempt himself from responsibility for his own negligence or that of his servants. 3 In the United States the same rule is generally enforced in cases of contracts for the carriage of passengers, whether the passengers be carried by the railway, for the ordinary and legally established rate of fare, or for a lower rate of fare, or even without the payment of any fare. 4 The English rule is followed 1 L. K. 3 H. L. Sc. & Div. 470. 2 See, also, Duff v. G. N. Ry., 4 Law Rep. Ireland 178. 3 Beckman v. Shause, 5 Rawle 179; Laing v. Colder, 8 Penna. St. 479; At- wood v. Reliance Transportation Co., 9 Watts 87 ; C. & A. R. R. v. Baldauf, 16 Penna. St. 67; Bingham v. Rogers, 6 W. it S. 495 j Amer. Express Co. v. Second National Bank of Titusville, 69 Penna. St. 394; Empire Trans. Co. v. Wamsutta Oil Co., 63 Id. 14; Farnham v. C. & A. R. R., 55 Id. 62; N. J. S. Nav. Co. v. Merchants' Bank, 6 How. 344; Dorr v. N. J. 8. Nay. Co., 1 Bandf. S. C. 136; Stoddard v. L. I. Ry., 5 Id. 180; Davidson a Graham, 2 Ohio St 131; Graham v. Davis, 4 Id. 362; Welsh v. P., C. & St. L. By, 10 Id. 75; Knowlton v. Erie Ry., Id. 260; Fillibrowne v. < r. T. By., 55 Me. 462 ; Sagei v. Portsmouth. 31 Id. 228 ; School District v. B., II. & E. B. B., 102 Mass. 552; I., P. & C. R. R v. Allen, 31 Ind. 394; Berry i». Cooper. 28 I la. 5 IS ; Staid v. Townsend, 'M Ala, 247; S. Ex. Co. v. Crook, U Id. 468; B. Ex. Co. a Moon, 39 Miss. 822; N. O. M. Ins. Co. r. X. < >., J. & Gr. N. B. K.. 20 La. in York v. Central B.R.,3 Wall L13; Walker v. Transportation Co., Id. 160; Express Co. v. Knntzc, 8 Wall. 342. 4 N. Y. C. R. R. v. Lockwood, 17 Wall. 867 ; Gr. T. By. v. Bterena, 96 D. B. 655; P. R. R. v. McCloskey, 23 Penna. St. 526; P. B B. v. ITend* pmh, 51 Id. 315; L. &B. R. R v. Chenewith, 52 Id. 382; P. B. B a BaUer, 67 Id. 886; B., P. & W. R. R. v. O'llara, L2 Weekly Notes of Cases (Penna I 178; Graham v. P. R. R., 66 Mo. 530; Jacobus r. St. P. & C. B. B., 20 Minn. 126; I. B. K. 502 EELEASES. in Canada, 1 and in Ireland, 2 and also in New York. 3 The case of Smith v. N. Y. C. R. R, 4 where the railway is held liable, is only distinguishable from the latter cases upon the ground that in that case the contract of ex- emption was general in its terms, and did not specify as a ground of exemption the negligence of the defendant or its servant, but in effect Smith's case must be held to be overruled as an expression of the law in New York by the later cases in that State. There are also some other cases in which the English and New York cases are followed. 5 419. Where the passenger is to be carried also over a connecting line, the limitation of liability made by contract with the original carrier, when available to protect the contracting line, avails also to protect the connecting line. 6 A contract in terms exempting a railway from responsibility for "damage" or "risks" to the passenger will not be so construed as to relieve the railway from liability for the results of negligence v. Monday, 21 Ind. 48 ; Arnold v. I. C. E. E., 83 111. 273 ; I. C. E. E. v. Bead, 37 Id. 484; Warren v. F. E E., 8 Allen 227 ; C, P. & A. E. E. v. Curran, 19 Ohio St. 1 ; Eose v. D. M. V. E. E., 39 Iowa 246 ; M. & O. By- v. Hopkins, 41 Ala. N. S. 486. 1 Sutherland v. G. W. Ey., 7 Up. Can. (C. P.) 409 ; Alexander v. N. Ey., 33 Up. Can. (Q. B.) 474, 35 Id. 453. 2 Johnson v. G. W. & S. Ey., 9 Irish Eep. C. L. 108. 3 Wells v. N.Y. C. E. E., 24 N. Y. 181 ; Perkins v. N. Y. C. E. E., Id. 196; Bissell v. Same, 25 Id. 442 ; Poucher v. Same, 49 Id. 263 ; Cragin v. Same, 51 Id. 64 ; Stinson v. Paine, 32 Id. 333 ; Blair v. E. Ey., 66 Id. 313. * 24 N. Y. 222. 6 Ashmore v. Penna. Trans. Co., 28 N. J. L. 180 ; Kinney v. C E. E., 32 Id. 407 ; Hall v. N. J. S. N. Co., 15 Conn. 539 ; Beck v. Weeks, 34 Id. 145 ; Law- rence v. N. Y. & N. H. E. E., 36 Id. 63 ; Kimball v. E. & B. E. E., 26 Vt. 247; Mann v. Preacher, 40 Id 332; Adams Ex. Co. v. Haynes, 42 111.89; Adams Ex. Co. v. Brooks, Id. 458; Illinois E. E. v. Adams, Id. 474; Haw- kins v. G. W. E. E., 17 Mich. 57, 18 Id. 427 ; B. & O. E. K. v. Bregy, 32 Md. 333 ; Brehme v. Adams Ex. Co., 25 Id. 328 ; Levering v. Union Trans. Co., 42 Mo. 88. 6 Hall v. N. E. Ey., L. E. 10 Q. B. 437. CONTRACTUAL EXEMPTION. 503 on its part. 1 In order to relieve the railway from lia- bility for the results of its negligence, the contract for its exemption must have been made with or accepted by the person injured; thus, where a mail agent was killed while travelling in charge of mails under a con- tract between the railway and the government, it was held that a condition of exemption in the pass given tc and used by the agent was inoperative, because the agent's right to free and safe transportation was absolute under the contract between the railway and the govern- ment. 2 It has been held in Illinois that a railway, which runs a sufficient number of passenger trains for the accommodation of the public, being under no legal obligation to carry passengers on its freight trains, may contract for a limitation of liability in cases of pas- sengers so carried, provided that equal terms are held out to all offering themselves to be so carried. 3 Where a passenger is carried for a valuable consideration, his use of a pass containing conditions exemjiting the rail- way from liability for negligence will not estop him from proving that he was not subject to those conditions. 4 420. While it mast be admitted that, as a general rule, parties to contracts may, as they please, assume obligations or limit their rights, yet it may well be con- tended, in the light of public policy and with a just, appreciation of the character and magnitude of railway operations, that railways ought not to be permitted in all cases to contract for exemption from the Legal con- sequences of their negligence. In G. T. Ry. v. Stevens, 8 Bradley, J., pertinently says: "it is often asked with l N. J. S. N. Co.v. Merchants' Bank, 6 Bow. 844; Smith v. \. V . C, B. k, 24N.Y. 22-J; SI. & O. Ry. v. Bopkins, 11 Ala. ■N.Y., L. E. & W. R. R. r. Seybolt, 95 N. Y. 562. » Arnold v. I. C. R. R., 83 III. 273. * G. T. Ry. v. Stevens, 95 U. S. 655. ' 98 I '■ S. 6G0. 504 RELEASES. apparent confidence, may not men make their own con- tracts ? or, in other words, may not a man do what he will with his own ?" The question at first sight seems a simple one, hut there is a question lying behind that. "Can a man call that absolutely his own which he holds as a great public trust, by the public grant, and for the public use as well as for his own profit ?" Railways do not deal with the public at arm's length, nor upon equal terms. The exigencies of business and the con- ditions of modern life compel individuals to avail them- selves of the facilities which railways offer, and to accept the terms which railways dictate. Therefore, that which is in legal form a contract between the railway and its customer is possibly the result of coercion rather than of agreement, and, for that reason, should be looked upon with suspicion, if its effect be to release the rail- way from usual and reasonable obligations. The law exacts damages for breaches of contract and other vio- lations of duty chiefly in order to compensate, in so far as possibly can be, the injured party for the wrong that has been done to him ; and no one can doubt that public policy demands not only that every wrong should be legally redressed at the cost of the wrongdoer, but also that that redress should so inevitably and so promptly follow upon the commission of the wrong, that the certainty of its exaction will be an ever-present warning not to do a like wrong. It is also to be remem- bered that inasmuch as railways are common and public, and not private or special, carriers, any one act of neg- ligence, which is the cause of injury to one passenger or forwarder of goods, may at the same time be the cause of the like or greater injury to other customers of the railway. It is, therefore, to the benefit of the public that all proprietors, managers, and servants of railways should realize that every act of negligence on CONTRACTUAL EXEMPTION. 505 the part of the railway will, of necessity and without exception, render the railway responsible in damages to the party injured thereby, if that party be himself without fault. This line of argument is forcibly stated by Bradley, J., in his judgment in N. Y. C. E. It. v. Lockwood. 1 Therefore, when a railway, in the exercise of its charter powers, receives a passenger for trans- portation upon payment of its ordinary and legally established rate of fare, or for any consideration, pecu- niary or otherwise, which it accepts as the equivalent of that fare, it may well be contended that considera- tions of public policy forbid the railway to enter into a contract with that passenger which shall have the effect of relieving the railway from responsibility for the con- sequences of its negligence. But these considerations do not apply to a case where the railway offers to the passenger a free choice between the alternatives of, on the one hand, transportation at the ordinary and legally established rate of fare, with liability upon the part of the railway to indemnify him against the consequences of its negligence, and, on the other hand, transportation at a lower rate of fare, or without any charge, upon condition that the railway be exempted from liability for its negligence. If, under such circumstances, the passenger voluntarily accepts the last-mentioned alter- native, considerations of public policy obviously do not forbid the railway to avail itself of that exemption from liability, whose insertion as a condition of the contract was, either partly or wholly, the consideration for the transportation of the passenger for less than the ordi- nary rate of fare. This view was clearly put in Kenney v. C. R. R. of N. J., 2 where the railway was held not to be liable to one who was killed by its oegligence 1 17 Wall. 357. ■ 34 N. J. L. 513. 506 RELEASES. while being carried as a passenger under a free pass, which in terms exempted the railway from liability for the results of its negligence. Van Syckcl, J., thus stated the grounds of the judgment : " the deceased did not choose to bargain with them in their general em- ployment, in which they hold themselves ready to transport passengers for hire, but asked and accepted from them a gratuity. To hold otherwise would be to say that a man, from the mere fact that his occupation is that of a common carrier, cannot, as to an individual transaction, be a gratuitous bailee. The company, there- fore, in asking immunity against loss in this case, does not seek to escape fram any part of its common-law' liability. The objection that this contract is inconsis- tent with, good morals and sound policy has been con- sidered in all the cases of this kind which have been submitted to judicial criticism. It differs widely from the question, whether a person should be allowed to stipulate against loss from his own negligence. Reasons of great cogency could be stated against the validity of such a contract, which can have no pertinency to this issue. The doctrine of respondeat superior has not been adopted, because there is any equity in imposing the loss upon the superior, but in order to induce the prin- cipal to use greater care in the selection, and to exercise increased watchfulness over the acts and conduct of his agents. While it may with great force be urged that the policy which dictates this rule would be infringed by permitting a railroad company, in the pursuit of its ordinary business, to contract for immunity from such loss, it is difficult to perceive how this consideration can apply to a transaction without their ordinary employ- ment, to a mere gratuity or accommodation, which con- cerns none but the immediate parties to it. Why should the passenger who solicits a free pass be permitted to CONTRACTUAL EXEMPTION. 507 escape the liability to loss, which he voluntarily assumes in order to secure the accommodation? It is certainly a breach of good faith in the passenger to attempt to fix the carrier with responsibility in such case. * * * The damage in this case resulted from the fault, not of the directors of the company, but from that of its subor- dinate agents, and no satisfactory reason has been given why the contract, which the parties themselves made, should be restrained of its full operation." 421. Of course, where a real freedom of choice be- tween the alternatives is not offered to the passenger, the condition of exemption ought not to protect the rail- .way. This view is supported by the case of N. Y. C. R. R. v. Lock wood, supra, where the plaintiff, having shipped cattle under a contract providing for the trans- portation of his cattle at less than tariff rates, and bind- ing him to attend to the loading and transportation and unloading of the cattle, and to take all risk of injury to them, and of personal injury to himself or to whomso- ever travelled with the cattle, and having received a pass certifying that he had shipped sufficient stock to pass free, but binding him to waive all claims for dam- ages or injuries, was injured by the negligence of the railway's servants, it being proven at the trial thai the tariff rates were about three times the ordinary rates charged, and that the usage of business was for all drovers to ship cattle under agreements similar to that made by the plaintiff, judgment upon a verdict for the plaintiff was affirmed in error. 508 RELEASES. II. RELEASES BY THE PLAINTIFF, OR THE PERSON INJURED. Subject to the qualifications stated, either the person injured or the plaintiff may release his right of action either before or after the injury. 422. Either the plaintiff, or the person injured, may- bind himself and his privies by his release of the cause of action if made upon an adequate consideration, and with a full knowledge of its legal effect. But a release will not bind the person injured which he was induced to sign by false representations made by an officer of the railway that his injuries were slight, and that if they should ultimately become serious he would, not- withstanding the release, be in a position to obtain fur- ther compensation from the railway. 1 So, a release may be set aside by proof that at the time it was executed, the party releasing his claim was insane, and, if be sub- sequently became sane, did not ratify it. 2 Whether or not a release of a claim for damages has been obtained through fraud is a question for the jury, and the burden of proving the fraud is on the plaintiff,- 3 but in order to warrant the submission of the issue on that point to the jury, the evidence of the fraud must be clear and in- dubitable. 4 A refusal upon the part of a passenger who has been injured to pay his fare, and an assent thereto upon the part of the carrier, does not amount to a settle- ment of the passenger's claim for damages for the in- jury, nor estop the passenger from asserting and enforc- 1 Hirschfeld v. L. B. & S. C. Ry., 2Q.B.D.1. 3 George v. St. L., I. M. & S. R. R., 34 Ark. 613, 1 Am. & Eng. R. R. Cas. 294; Dixon v. B. C. & N. R. R., 100 N. Y. 170. s Hawes v. B., C. R. & N. R. R., 64 Iowa 315, 19 Am. & Eng. R. R. Cas. 220; C.,R.I. & P. Ry. v. Lewis, 109 111. 120, 19 Am. & Eng. R. R. Cas. 224; Bus- sian v. M., L. S. & W. Ry., 56 Wise. 325, 10 Am. & Eng. R. R. Cas. 716. * P. R. R. v. Shay, 82 Penna. St. 198. RELEASE BY PRE-CONTRACT. 509 ing such, a claim. 1 It has been held that where a pas- senger has sued his carrier and also the owner of a col- liding carriage his release or discharge of the carrier will bar his action against the other defendant. 2 423. A release by the person injured will bind those who, after his death, sue for the damages caused to them by his death ; thus, in Read v. G. E. Ry., 3 a widow having brought suit under Lord Campbell's Act the de- fendant pleaded that in the lifetime of the decedent "the defendants paid him, and he accepted, a sum of money in full satisfaction and discharge of all the claims and causes of action he had against the defendants," and on demurrer judgment was entered for the defendant, Lush, J., saying: "the intention of the statute is, not to make the wrongdoer pay damages twice for the same wrongful act, but to enable the representatives of the person injured to recover in a case where the maxim actio personalis morltur cum persona would have applied. It only points to a case where the party injured has not recovered compensation against the wrongdoer. It is true that s. 2 provides a different mode of assessing the damages, but that does not give afresh cause of action." 424. A person may also bind himself and his privies before receiving any injury by his stipulation that, if injured, he will not claim damages; thus, in Griffith /•. The Earl of Dudley, 4 the widow of a workman suing under the Employer's Liability Act, 1880, for damages caused to her by the death of her husband was held to be barred by his contract with his employer, made upon a valuable consideration for himself and his representa- tives and any person entitled, in case of his death, oot to claim any compensation under the Act for personal » M. Packet Co. v. Clough, 20 Wall. 528. * Burton v. Price, 57 Cal. 272. •L.B.3Q.B.555. •9Q.B.D.857. 510 EELEASES. injury whether resulting in death or not. 1 On the other hand, in K. P. Ky. v. Peavey, 2 the facts were that the Kansas statute 3 subjected the railway to liability to its servants for injuries caused by the negligence of their fellow-servants, that after the passage of that Act the plaintiff entered into the service of the railway, and signed a written release stipulating that in consideration of the wages to be paid to him he would not hold the railway liable in damages for injuries caused to him, inter alia, by the negligence of his fellow-servants, and that the plaintiff was injured by such negligence; and the court held the release void because against public policy, and entered judgment against the railway. Horton, C. J., thus states the ground of decision: "the State has such an interest in the lives and limbs of its citizens that it has the power to enact statutes for their protection, and the provisions of such statutes are not to be evaded or waived by contracts in contravention therewith. The general principle deduced from the authorities is that an individual shall not be assisted by the law in enforcing a contract founded upon a breach or violation on his part of its principles or enactments; and this principle is applicable to legislative enactments, and is uniformly true in regard to all statutes made to carry out measures of general policy, and the rule holds equally good if there be no express provision in the statute peremptorily declaring all contracts in violation of its provisions void." The fallacy in this line of reasoning is obvious ; the relation between the railway and its servants is purely voluntary and contractual ; the servant is not compelled to enter the service of the 1 See also W. & A. R. R. v. Bishop, 50 Ga. 465 ; Galloway v. W. & A. R. R., 57 Id. 512 ; W. & A. R. R. v. Strong, 52 Id. 461 ; Hendricks v. W. & A. R. R. Id. 467. 2 29 Kans. 169. 11 Am. & Eng. R. R. Cas. 260. 3 Ch. 93, Laws of 1874. RELEASE BY PRE-COXTRACT. 511 railway, and the conditions of his service are the result not of coercion, but of compact, and the railway is, therefore, as much entitled to insist upon a release of damages by pre-contract, as it is entitled to insist that the servant's pay shall be two, three, or five dollars a day, instead of twenty, thirty, or fifty dollars a day. There is, in principle, an obvious distinction between the relation which the railway holds to its servants and that which it holds to persons not contractually con- nected with it, and even to passengers who deal with it on the basis of its quasi-public status. INDEX. The references are to the pages. ABUTMENT. Injury from falling over, 150. Liability of railway to servants for injuries caused by dan- gerous proximity of, to line, 307. Presumption of negligence in case of falling of brick from, 441. ACCIDENT, INEVITABLE. See Inevitable Accident. ACCIDENTAL INSURANCE. See Insurance. ACT OF GOD. Definition of, 29. Non-liability of railways for injuries caused solely by, 29. Illustrations of, 32. Recurrence of, 32. Liability of railway where negligence on its part has con- curred with, in causing the injury, 34. Illustrations of negligence of railway concurring with, 34 ACTION. See Assumpsit, Case, Trespass. Form of, 385. Distinction between contract and tort only formal in th< but of practical importance, 386. When the remedy is in equity, 3 ACTS AND OMISSIONS. See Commission ok OMISSION, ' ►MISSION. Liability of railway for acta dependent upon the relation between the railway and the actor, the scope of bis authority, and the character of the act, 97. 33 514 INDEX. ADMINISTRATORS. See Personal Representatives. ADMISSIONS. See Declarations. AGENCY. Relation of, between railway and wrongdoer fixes liability of railway for wrongful act, 38. Distinction in legal effect between special and general, 98. AGENTS. See Agency. Contributory negligence of, 75. ALTERATIONS. See Changes in Construction. ASSAULT. Liability of railway for, 111, 112. ASSUMPSIT. When the action of lies, 390. Damages in, 394. ATTENDANTS OF PASSENGERS. Liability of the railway to, 219. AUXILIARY LINES. See Connecting Lines. BACKING TRAINS. Care to be observed in, 1G6. BASTARD. Cannot recover damages for parent's death, 492. BOARDING AND LEAVING TRAINS. Liability of the railway for injuries incurred in, 16, 264. Contributory negligence in, 62. BOILERS. See Engines. Presumption of negligence in case of explosion of, 439. BRAKES. Duty of the railway to travellers on highways as to, 167 Duty of the railway as to brakes of cars stored on siding, 178. Duty of the railway to passengers as to, 240. Duty of railway to servants with regard to, 307. BRIDGES. Duty of the railway as to, with regard to passengers, 240. INDEX. 515 BRIDGES— Continued. With regard to servants, 305. Non-liability for destruction of bridge by act of God, 32. Or by public enemy, 35. Duty of the railway to travellers on the highway as to rail- way bridges over highways, 149. Duty of the railway to travellers on the highway as to high- way bridges over the line, 149. Duty of railway to servants as to bridges over the line, 302. Presumption of negligence in case of fall of, 440. BRIDGE ABUTMENT. See Abutment. BRIDGE GIRDER. See Girder. BRIDGE-GUARDS. Duty of railway to servants with regard to, 30(3. BUILDINGS. Duty of the railway to passers on the highway, as to. 148. Duty of the railway to passengers, as to its, 240. Duty of the railway to licensees, as to its, 177. Duty of the railway to trespassers, as to its, 190. Duty of the railway to servants, as to its, 305. Nou-liability for destruction of, by act of God, 32. BURDEN OF PROOF. General doctrine concerning, 433. Of negligence, 433. Of contributory negligence, 438. CANCER. Liability of railway for, following railway accident, 28. CARPENTERS. As fellow-servants, 3G0, 3G8. CARRIERS OF PASSENGERS. Liability of railways as, 200. Negligence of, attributed to passengers, 78. CARS. Duty of the railway to passengers with regard l<> its, 240. With regard to cars received from other lin< - for transpor- tation, 238. Duty of railway to servants, with regard t<>, 307. Duty of railway to servants, with regard to can received from other lines for transportation, -JiM. 516 INDEX. CASE, ACTION ON THE. Where it lies, 390. Damages iu, 394. CATTLE-CHUTES. See Chutes. CAUSE, PROXIMATE AND REMOTE. See Proximate and Remote Cause. CHANGES IN CONSTRUCTION. Admissibility of proof of made subsequently to injury, 421. CHILDREN. Contributory negligence of, 6Q. Contributory negligence of parents, etc., as attributed to, 90. Negligence, to be graduated by capacity, QQ. Turn-table cases, 184. For jury to determine capacity of, 70. Not so as to, more than fourteen years of age, 70. Railway owes higher measure of duty to, 71. Fact of infancy will not supply want of proof of negligence by railway, 72. Liability of railway for injuries to minor servants, 338. Damages recoverable by parent for injury to, 481. For death of, 487. CHUTES. Liability of railway to servants for location of, in dangerous proximity to line, 308. CLASSIFICATION. Of tho.se for whose acts railways are liable, 98. Of those to whom railways are liable, 143. Of those to whom railways are liable to the same extent as to passengers, 143, 199. Of fellow-servants, 365. COAL-CHUTES. See Chutes. COLLATERAL OCCURRENCE. Admissibility of proof of, 420. COLLISION. Presumption of negligence in case of, 439, 442, 443. COMMISSION OR OMISSION. Liability of the railway, as afleeted by the character of the act as one of, 37, 96. INDEX. 517 COMMON EMPLOYMENT. See Fellow-servants. COMPARATIVE NEGLIGENCE. Defined. 59. The rule of, in Illinois, 59. The rule of, in Georgia and Tennessee, 60. Not a reasonable doctrine, 60. CONDUCTORS OF TRAINS. Not vice-principals, 324. As fellow-servants, 367, 369. CONNECTING LINES. Liability of railways for the negligence of, 137. Liability of railways for the negligence of other railways exercising statutory running powers, 140. Liability of railways for the negligence of other railways exercising contractual running powers, 141. CONSEQUENCES. See Proximate and Remote Cause. CONSIGNOR AND CONSIGNEE. Liability of railway to, when personally assisting in the reception or delivery of their freight, 223. Non-liability to volunteer assisting, 224. Contributory negligence of, 224. CONTRACT. See Action. Liability of railway to person using line, etc., under spe- cial, 225. Damages for breaches of, 459. CONTRACTOR. See Independent Contractor. CONTRIBUTORY NEGLIGENCE. In general, 45. The reason of the rule of, 47. Defined, 48. Essentials of proof of, 48, In avoiding dangers, or obviating inconveniences, 62. Doubts as to the applicability of doctrine of, to paasengeii, 48. Of persons deprived oftbi ir b >ns ss, 66. Neither moral quality nor motive of act relevant if oneof contributory negligence, 50. 518 INDEX. CONTRIBUTORY NEGLIGENCE— Continued. Opportunity of knowledge equivalent to knowledge for pur- poses of, 50. Of infants, 66. Belief of contributorily negligent person not relevant, 50. No defence in case of wilful injury, 50. Railway liable if injury could have been avoided notwith- standing negligence of person injured, or of plaintiff, 51. Rule in Davis v. Matin explained, 55. Comparative negligence, 59. In not performing collateral statutory duty, 64. Sunday travelling, 65. Generally for jury to determine capacity of infants, etc., 69. Not so, in cases of infants more than fourteen years of age, 70. Railway owes higher duty to infants, etc., than to adults of average capacity, 71. Fact of infancy, or other incapacity, will not supply want of proof of negligence by the railway, 72. Of drunkards, 74. Knowledge of injured person's incapacity necessary to fix railway with liability, where it would not be liable to person of average capacity, 75. Plaintiffs contributory negligence a bar when suing for in- juries to another's person, 75. Of parents, when suing for injuries to child, 76. Of poor parents, 77. Attributed, 78. Attribution of carrier's negligence to passenger, 78. Of passers, on highway near the line, 154. Of passers, on highway at grade crossings, 168. When contributory negligence at grade crossings is to be decided by the court, and when by the jury, 168, 170. Duty of increased care, wdien the crossing is specially dan- gerous, 171. Excuses for carelessness, 172. Of trespassers, 183,192. Of consignors and consignees, 224. Of passengers, 259. Of servants, 373. Presumption of contributory negligence, 443. A question of fact, 447. INDEX. 519 CONTRACTORS. See Independent Contractor. CONTRACTING PARTY. Contributory negligence of, as attributed to the person on whose behalf the contract was made, 88. COUPLINGS. Railway not bound to servants to have uniform couplings, 302. Servants take ordinary risks of, 346. COURSE OF EMPLOYMENT. See Scope of Employment. # COURT AND JURY. Provinces of, as to negligence and contributory negligence, 448. As to damages, 468. CROSSINGS. Liability of railway for failure to maintain, in repair, 155. Duty of the railway in the operation of its line at, 157, 166. Reciprocal rights and obligations of the railway and of passers on the highway at, 158. At grade objectionable, 157. Speed of trains at, 159. Statutory signals at, 160. Duty of the railway as to giving notice of approach of train to, 162. Duty of the railway as to flagman at, 163. Duty of the railway as to gates at, 163. Failure of the railway to perform self-imposed duty at, when negligence, 164. Increased duty of the railway when specially dangerous, 165. Duty of the railway to its passengers with regard to COE- struction and maintenance of, 240. CROWD. See Mob. CULVERTS. Duty of railway to servants with regard to, 805. CYCLONE. Non-liability of railway because train is Mown Brain track by, 32. Or station building is prostrated by, 32. 520 INDEX. DAMAGES. For breach of contract of carriage, 459. For illness following such breach, 466. For torts, 468. The old rule, 468. The modern rule, 468. Provinces of judge and jury as to, 468. Duty of the judge as to, 468. Duty of the jury as to, 469. Excessive, 470. Inadequate, 470. Not generally subject to review in appellate tribunal, 470. Exemplary, 471. In case of injuries not causing death, 472. Not to be diminished by receipt from accidental insurance policy, 474, 494. Duty of person injured to exercise care in his surgical treat- ment after injury, 480. Measure of, in suit for personal injuries, 473. In suit by husband for injuries to wife, 480. In suit by parent or master for injuries to child or servant, 481. In suit for death, 482. Pecuniary loss, 486. Damages recoverable by parent for child's death, 487. By husband and children suing for death of wife and mother, 490. By widow and children suing for death of husband and father, 491. By next of kin, 491. By personal representatives, 492. Bastard cannot recover as a child, 492. Personal sufferings of deceased not elements of damage, 492. Do not include solatium, 492. Funeral expenses, etc., when recoverable as, 493. Life insurance, 494. Statutory limitations of, 494. DANGERS. Liability of railway for injuries incurred in avoiding, 14. Contributory negligence in avoiding, 62. DEATH. No right of action in tort for, at common law, 397. IXDEX. 521 DEATH— Continued. Right of action for, caused by breach of contract, 399. Statutes authorizing recovery of damages for, 402. Contributory negligence of the dead person attributable to those who sue for damages for his death, 87. DECLARATIONS. Admissibility of, by agents or servants of the railway, 415. By the plaintiff, or the person injured, 417, 418. DEFECTIVE CARS. See Cars. DEFENDANT. Who may be, 412. DEFINITION OF NEGLIGENCE. See Negligence. DEGREES OF NEGLIGENCE. See Negligence. DEPOT. See Station. DERAILMENT. Presumption of negligence in case of, 439. DERRICK. Injuries caused by, 151, 152. Duties to servants with regard to, 306. DOORS OF CARS. Injuries incurred in closing, 15. DRAWING-ROOM CARS. See Sleeping-Cars. DRIVER OF CARRIAGE. Negligence of, imputable to person driven, 78. DROVERS' PASSES. Liability of railway, 204. Effect of limitations in, 505. DRUNKARDS. Contributory negligence of, 7 I. Liability of railway Cut- retention <>f' intemperate servant*, 314. DUTY. General, of tin- railway, .'!. To passengers, etc., 231. To servants, 295. 522 INDEX. DUTY— Continued. To licensees, 176. To trespassers, 182. To persons lawfully on highways at grade crossings, 162. Higher measure of, to children, etc., 71. Of the judge at nisi prius, 448, 468. EMBANKMENTS. Duty of railway to passengers in construction and mainte- nance of, 240. Not liable for destruction of, caused by act of God, 32. Duty of railway to servants with regard to, 305. Presumption of negligence in case of breaking down of, 440. EMPLOYE. See Servant. ENEMY, PUBLIC. See Public Enemy. ENGINES. Duty of railway to servants with regard to, 306. ENGINE-DRIVERS. Not vice-principals, 323, 327. As fellow-servants, 366, 369. Contributorv negligence of, 374. ENGINEERS. See Engine-drivers. ENGINEER'S STAKE. Liability of railway for injuries caused by falling over, on highway, 151. EQUITY. When the remedy of the person injured is in, 385. ESCORTS OF PASSENGERS. Liability of the railway to, 219. EVIDENCE. In actions against railways for negligence, 415. Burden of proof of negligence, 433. Of contributory negligence, 435. Presumption of negligence, 438. Presumption of contributory negligence, 443. Minor presumptions, 444. Admissibility of declarations by agents. and servants of the railway, 415. INDEX. 523 EVIDENCE— Continued. Admissibility of declarations by the plaiutiff or the person injured, 417, 418. Admissibility of proof of collateral occurrences, 420. Admissibility of proof of changes in construction or mode of operation of the line, 421. Admissibility of proof of attempted subornation of perjury, 423. Inspection of injuries, 424. As to speed of trains, 424. As to signals, 426. Admissibility of life tables, 431. Non-admissibility of evidence as to poverty of person injured, etc., 432. EXCESSIVE DAMAGES, 469. EXECUTORS. See Personal Representatives. EXEMPLARY DAMAGES, 471. EXEMPTION. The railway's contractual, from liability for negligence, 498. EXPLOSION. See Boilers. EXPRESS COMPANIES' AGENTS. Liability of the railway to, 216. Non-liability of the railway to persons accompanying, at their invitation, 217. FARE. Payment of, in money, not essential to make one a pas- i 204. Effect of payment of, by other than passenger, 205. FELLOW-SERVANTS. Implied undertaking by, to bear the risks of each Others' negligence, 350. The doctrine of a common employment, 356. The test of a common employment, 363. Classification of fellow-fiervants, 366. Who are, 365. Who are not, 369. Test as to, 363. FIGHT. See Mob. 524 INDEX. FIREMEN. As fellow-servants, 366, 369. Risks of injury taken by, 347. FLAGMEN AT CROSSINGS. Duty of the railway as to, 163. FLOODS. Railway not liable for, when caused by act of God, 32. FLYING SWITCH. Liability of railway for injuries from, 166. FOG SIGNAL. See Torpedo. FOREMEN. Not vice principals, 323. FREE PASSENGERS. Liability of railway to, 207. FRIGHT. Of persons, as excusing contributory negligence, 62. Of horses — By cars at rest, 151, 152, 153. By derricks, 152. By whistling of engines, 152, 153. By escape of steam, 152, 153. By falling of coals from elevated railway, 152. By passing of train over a bridge, 152. FROST. Non-liability of railway for breaking of rail by, 32. FUNERAL EXPENSES. When recoverable as damages for death, 493. GATES AT CROSSINGS. Duty of the railway as to the maintenauce of, 163, 164. GIRDER. Railway not liable for falling of, on car, 38. " GROSS NEGLIGENCE." See Negligence. GUARDIANS. See Parents. GUARDS. See Train-hands. index. 525 HAND-CARS. Duty of servants with regard to, 307. HERNIA. Liability of railway for, 28. HIGHWAYS. Liability of railway for obstructions of, 23, 151. Duty of the railway as to repair of, on which line is laid, 150. Duty of the railway as to repairing, at crossings, 155. Liability of railway for negligent construction of crossing of, 156. Right of passers on, on which line is laid to cross at any point, 157. HORSE-CARS. See Street Cars. HUSBAND AND WIFE. Contributory negligence of husband when suing for injuries to person of wife, 75. Of husband when attributed to wife, 87. Damages recoverable in suit : By husband for injuries to wife, 481. By husband for death of wife, 490. By wife for husband's death, 491. ICE AND SNOW. Railway liable for neglect to remove, from stations, 25 [, Street railway liable for neglect to remove from car plat- forms, etc., 275. Injuries caused by, 151. ILLNESS. Following breach of contract of carriage, when dan recoverable for, 4C6. IMPLEMENTS. S.;e Tools. IMPROVEMENTS IN MACHINERY AND OPERATION. Duty of the railway os to the adoption of, 2 1 1. i XA DEQUATE DAMAGES, 470. INCONVENIENCES. Liability of the railway for injuries incurred in avoiding, 1 -. Contributory negligence in avoiding, 62. INDEPENDENT CONTRACTORS. The old rule as to the liability of the employer lor tie ligence of, 119. 01b INDEX. I N DEPENDENT CONTRACTORS— Continued. The modern rule, 122. Liability where the railway has reserved control both of re- sult and means, 123. Eftvct of the reservation of a more limited control, 125. Liability of the railway for a wrongful act done in execu- tion of the contract, 126. Liability for the contractor's non-performance of a duty in- cumbent on the railway, 127. The railway's duty as to the anticipation of negligence on the part of the contractor, 129. INEVITABLE ACCIDENTS. Definition of, 35. Non-liabilty of railways for, 35 INFANTS. See Children. INJURIES. See Inspection of Injuries. Not causing death, measure of damages in, 472. Causing death, measure of damages in, 482 INSANE PERSONS. Measure of duty of railway to, 71. Contributory negligence of, 66. INSPECTION. Duty of as to passengers, 238. Duty of, as to servants, 303. INSPECTION OF INJURIES. Power of court to order, 424. INSPECTORS OF REPAIRS. As fellow-servants, 330, 335, 367, 369. INSURANCE. No right of action by company whose assured is killed by negligence of railway, 399. Damages as affected by receipts from policies of, 474, 494. INTERFERENCE OF THIRD PARTY. Will not relieve railway from responsibility for the conse- quences of its negligence, 39. Not attributed to plaintiff, or to person injured, as contribu- tory negligence, 95. INTOXICATION. See Drunkards. IXDEX. 527 INVITATION. Liability of railway for servant's act in inviting person in- jured to occupy a position of danger, 155, 164, 180, 286. JOINDER. Of common law and statutory claims, 395. JOINT TORT FEASORS. Liability of, 413. JUDGE. The duty of at nisi priiis, 447, 468. JURY, PROVINCE OF. See Court and Jury. LABOURERS. Risks of injury impliedly undertaken by, 347. As fellow-servants, 367, 370. LAW. See Action. When the remedy of the person injured is at law, and when in equity, 385. LAWS OF NATURE. Conclusive presumption as to accuracy and certainty of, 446. LESSEE RAILWAYS. See Lessor Railways. LESSOR RAILWAYS. Liability of, for the negligence of lessee railways, 182. LICENSEE. Duty of the railway to, 176. Non-liability of the railway to, for failure to maintain buildings, etc., in repair, 177. Liability to, for negligent operation of line, 178. LIFE TABLES. Admissibility in evidence of, 431. LIGHT. Duty of railway to light engines and can approaching a crossiug at night, 167. Duty of railway to adequately light ita stations, etc., 318. LIMITATION OF LIABILITY. By contract, 498. LINE. Duty of the railway to its passengers, with regard to, 240. To its servants, with regard to, ■ 528 INDEX. LOCOMOTIVES. Duty of the railway to its passengers, with regard to, 240. LOGS. Injuries by, thrown on station platforms, 255. LOOK AND LISTEN. The duty to, on the part of a person approaching a grade crossing, 168. LUNATICS. See Insane Persons. MAIL-BAGS. Injuries by, thrown on station platforms, 255. MAIL-CARRIERS. See Post-office Employes. MAIL-CATCHER. Railway liable to servants for construction of, in dangerous proximity to line, 308. MAN-TRAPS. See Traps. MANUFACTURER. Railway liable for negligence of, in construction of rolling stock, 237. MARRIED WOMEN. See Husband and "Wife. MASTER AND SERVANT. See Servant. Contributory negligence of master, when suing for injuries to servant, 76. Contributory negligence of servant in charge of property, attributed to master suing for injury to that property, 87. MASTER, LIABILITY FOR SERVANT. See Servant. MINORS. See Children. MOB. Railway not liable for injuries done by, 39. MORTGAGE TRUSTEES. Liability of railways for the negligence of, 134. INDEX. 529 MOURNING. When disbursements for, recoverable as damages for death. 493. MUNICIPAL ORDINANCES. See Ordinances. NEGLIGENCE. The test of liability, 1. Comparative. See Comparative Negligence. Contributory. See Contributory Negligence. Defined, 5. Degrees of, not material, 7. Evidence of, 415. Burden of proof of, 433. Presumption of, 438. A question of fact, 447. NEGLIGENCE, COMPARATIVE. See Comparative Negligence. NEGLIGENCE, CONTRIBUTORY. See Contributory Negligence. NEWSBOYS. Liability of the railway to, 216. NON-CONTRACTUAL LIABILITY. The general principle determining the liability of railways to those with whom there is no contractual relation, 145. OBSTRUCTION OF HIGHWAYS. Liability of railways for, 23, 151. OBSTRUCTIONS ON LINE. Non-liability of railway for act of stranger, 38. OMISSIONS. See Commission or Omission. Omissions of duty render railway liable without regard to the relation of the actor to the railway, 97. OPERATION OF THE LINE. Liability of railway Co passers on highways for n in its, 151. Duty of the railway to passengers in, 27 L To servants in, 316. ORDINANCES. Non-performance of duty imposed by, ai oegligi m 34 530 INDEX. OSTLER. Risk of injury impliedly undertaken by in railway stables, 349. PALACE CARS. See Sleeping-Cars. PARENT AND CHILD. Negligence of parents when suing for injuries to child, 76. Contributory negligence of poor parents, 77. Contributory negligence of parent as attributed to child, 90. PARTIES. Plaintiff, 411. Defendant, 412. PASS, FREE. See Free Passenger. PASSENGER. The general principle determining the liability of railways to its, 200. Definition of, 204. Payment of fare in money not essential, 204. Liability of railway to free passengers, 207. Liability of railway to trespassers on cars, 208. Liability of railway to persons attempting to defraud the railway of their fare, 209. Implied authority of servants to accept persons for transpor- tation as passengers on passenger trains, 209. On freight trains, 209. On pay cars, 210. On hand cars, 210. Servants as passengers, 210. Passengers as servants, 212. When the relation of carrier and passenger begins, 212. Liability of the railway to passenger temporarily absent from the means of conveyance, 214. When the relation of carrier and passenger ends, 215. Liability of the railway to post-office employes, 215. To soldiers carried under contract with the Government, 216. To express agents, 216. To vendors of newspapers, refreshments, etc., 216. To passengers of another railway, whose cars are run over their line, 217. To passengers of another railway with whom a station is jointly occupied, 217. IXDEX. 531 PASSENGER— Continued. To passengers of another railway at a level crossing of the lines, 218. To passengers of another railway received for transportation in its cars, 218. To attendants of passengers, 219. To servants of other lines, 220. Liability of railways to consignors or consignees personally assisting in the reception or delivery of their freight, 223. Non-liability to volunteer assisting consignors or consignees, 224. Contributory negligence of consignors and consignees, 224. Liability to persons using the line or stations under special contract, 225. The Penna. act of 1868, 225. Constitutionality of the act, 226. Purview of, 227. Cases under 228. General duty of the railway to passengers, etc., 231. Duty of the railway as to passengers in freight trains, 292. Railway not liable for injuries caused solely by act of God, 29. Or by inevitable accident, 35. Or from such defects in machinery, etc., as could not have been detected by exercise of due care, 233. Duty of care in construction and maintenance of line in rolling stock, 235. Duty of inspection, 238. Duty as to cars received from other lines, 238. Duty as to roadway, 240. Duty as to rails, 240. Duty as to ties, 240. Duty as to bridges, 2 10. Duty as to embankments, 240. Duty as to level crossings, 240. Duty as to switches, 240. Duty as to rolling stuck, 240. Duty as to cars, 240. Duty as to car-axles, 210. Duty as to car-brakes, 2 10. Duty as to car-wheels, 240. Duty as to locomotives, 2 10. 532 INDEX. PASSENGER— Continued. Duty us to means of transportation controlled by other par- ties, 240. Duty as to sleeping-cars, etc., 242. Duty of the railway as to the adoption of improved appli- ances and methods of operation, 244. Regulations as affecting passengers, 250. Station approaches, buildings, and platforms, 253. Duty of railway to give reasonable notice of starting of train, 260. Effect of calling name of station before train stops, 261. Duty of railway to stop its trains at way-stations a reason- ably sufficient time for the safe ingress and egress of passen- gers, 263. Injuries incurred in boarding and leaving moving trains, 22, 263. Injuries incurred in descending from cars at rest, 266. Duty of the railway in the operation of its line, 274. Speed of train when negligent as to passengers, 276. Liability of railway for negligent closing of door, etc., by servant, 277. Injuries incurred in closing doors, etc., 279. Liability of railway for injuries caused by disorderly pas- sengers, 280. Injuries caused by sudden jolts, 282. Contributory negligence of passengers, 282. Crossing the line, 283. Moving from car to car, 283. Riding on the platform, 283. Exposing head or arm out of window, 284. Riding in baggage-car, 286. Not necessarily negligent to ride on platform of street- car, 290. Increased duty of railway to disabled passenger, 291. Injuries aggravated by impaired physical condition of the injured person, 292. Contributory negligence of carrier, as attributed to passen- ger, 78. Occasional carriers not liable as common carriers, 292. May sue either in case or assumpsit, 390. Stranger to the contract of carriage cannot recover in either form of action, 391. Presumption of negligence in cases of injury to, 439, 442. INDEX. 533 PAYMENT INTO COURT. Effect of, 395. PERJURY. Admissibility of proof of attempted subornation of, 423. PERSONAL REPRESENTATIVES. Measure of damages in action by, for death, 492. Right of action for breach of contract followed by death, 399. No right of action at common law for tort causing death, 397. Statutes vesting right of action for death, 402, 403. PILEDRIVER. Injury for explosion of, 179. PITS. Injuries from falling into, 178, 183. PLAINTIFFS. Who may be, 411. Contributory negligence of, when suing for injuries to some one else, 75. PLANKS AT CROSSING. Liability of railway for defective, 157. PLATFORMS. Non-liability of railway to licensee for instability of station, 177. Duty to passengers with regard to, 254. PNEUMONIA. Liability of railway for, 28. POINTSMAN. See Switch-tender. POST-OFFICE EMPLOYES. Not servants of railways, 102. Non-liability of railway- for acts of, 1"'-'. Not passengers, 210, 229. Liability of railways to, 215. PREMATURE CONFINEMENT. Liability of railway for, 28. PRESUMPTIONS. Of negligence, 438. Of contributory negligence, 4 13. As to earn of traveller at grade crossing, 174. Minor, 444. 534 INDEX. PROXIMATE AND REMOTE CAUSE. Railway's negligence must have been the proximate cause of the injury to the plaintiff, 9. Plaintiff's contributory negligence must have been the proxi- mate cause of the injury, 55. Tests of, 10, 11. Injuries incurred in avoiding dangers as illustrations of, 14. Injuries in avoiding inconveniences as illustrations of, 15. Injuries in boarding or alighting from trains as illustrations of, 16. General illustrations of, 23, 26. Subsequently developed injuries as illustrations of, 28. Negligence of railway and of fellow-servants as proximate and remote cause of injury to servants, 337. PUBLIC ENEMY. Non-liability of railways for injuries solely caused by an act of the, 35. QUASI-PUBLIC CHARACTER OF RAILWAYS. As affecting their liability, 4. RAILS. Duty of the railway to passengers, with regard to, 240. RECEIVERS. Liability of railways for the negligence of, and their ser- vants, 135. Liability of, for their own negligence and that of their ser- vants, 135. REFRESHMENTS. Liability of the railway to vendors of, 216. REGULATIONS. As affecting passengers, 250. As affecting servants, 316. RELEASE. Of damages, 508. Not binding when induced by false representations, 508. Release by person injured binding as those who sue for damages for his death, 509. By pre-contract, 509. REMOTE CAUSE. See Proximate and Remote Cause. index. 535 ROADS. See Highways. ROADWAY. Duty of the railway to its passengers, with regard to, 240. To its servants, with regard to, 305. ROLLING STOCK. See Cars. Duty of the railway to the passengers, with regard to, 240. ROPING CARS. Injuries by, 151. ROUND-HOUSE. Duty of railway to servants, with regard to, 30G. Injuries in, 377. RULES AND REGULATIONS. See Regulations. RUNNING SWITCH. See Flying Switch. SCOPE OF EMPLOYMENT, 104. SELF-CAUSED INJURIES. Non-liability of railways for, 36. SELF-IMPOSED DUTY. Failure to perform, when negligence, 164. SERVANTS. Contributory negligence of, in charge of property attributed to master when suing for injury to that property, 87. General nature of master's liability for the acts of, !>!>. " Respondeat superior" explained and illustrated, 100. Relation of master and servant must in fact exist, 101. Post-office employes pot servants, 102. Non-liability of railways for acts of volunteers, L03. Test of the existence of the relation of master and servant, 103. Non-liability of railways for acts of assistants en servants without authority, 103. Scope of employment of, L0 1. Non-liability of railways for acts of, beyond the sco] th. ir employment, 105. If the relation exist, and if* the act be within the scope of employment, not material thai the si rvanl duob ived orders, 1"" Liability for servant tn pa < -, lo7. 536 INDEX. SERVANTS— Continued. , Liability for servant's l-emoval of trespassers, 108. Implied authority of, to remove trespassers, 109. Liability for arrests by, 110. Liability for assaults by, under orders, 111. Non-liability for mistaken exercise of judgment by, in an emergency, 111. Liability for wilful acts of, beyond the scope of employment, 112. Proof of ratification, 113. Liability for servant's act in inviting person injured to occupy position of danger, 155, 164, 180, 286. Servants as passengers, 210. Passengers as servants, 212. Liability of railway to servants of other lines, 220 Definition of the term servant, 294. General duty of masters to, 295. Negligence the test of liability, 298. Non-liability of railway for accidental injuries to, 300. The railway's duty of care in the construction and mainte- nance of appliances of labor, 300, 305. The railway's duty of inspection, 303. Liability of railway for location of structures in dangerous proximity to the line, 307. Liability of railway for defective condition of cars received from other lines for transportation, 309. Duty of the railway as to selection and retention of, 313. Liability of railway for retention of incompetent, 314. Duty of railway as to organization, discipline, and control of, 315. Duty of railway to, in the operation of the line, 316. Regulations as affecting, 316. Duty of railway to sufficiently man its trains, 317. Speed, when negligent as to, 318. Duty of railway to light its trains, 318. Vice-principals, 320. Railway's liability for negligence in construction, mainte- nance, or inspection, without regard to rank of servant to whom the neglected duty has been delegated, 328. Negligence of the railway and of fellow-servants as proxi- mate and remote cause, 337. Duty of railway to minor, 338. index. 537 SERVANTS— Continued. Implied undertaking of, to bear the risks of the service. 342. Risks of injury impliedly undertaken by train hands, 344. By firemen or stokers, 347. By labourers on the line, 347. By -well-diggers, 349. By ostler in railway stables, 349. Risks of special service, 349. Risks of injury from negligeuce of fellow-servants, 350. The doctrine of a common employment, 356. The test of a common employment, 363. Classification of fellow-servants, 365. Volunteers acting as servants, 370. Termination of relation of master and, 372. Contributory negligence of, 373. Obedience to orders as an excuse for, 381. Effect of complaint and promise to remedy defect, 381. Statutes affecting liability of railways to, 382. SICKNESS. See Illness. SIDINGS. Duty of the railway as to storage of cars on, 40. Duty of railway to servants, with regard to, 306. SIGNALS. At crossings, 160. SIGNAL-POSTS. Liability of railway to servants for location of, in dan :< roua proximity to line, 308. SIGN-BOARDS AT CROSSINGS. Duty of the railway as to, 163. SLEEPING-CARS. Duty of the railway to passengers, with regard to, 242. Non-liability of sleeping-car company for unauthorized acl of servant of, beyond scope of employment, 106. SNOW. See Ice and Snow. SOLDIERS. Liability of the railway to soldiers, carried under contract with the Government, 216. 538 INDEX. SPEED OF TRAIN. "When negligent as to passengers, 276. As to travellers on highways, 158. As to servants, 318. STAKE. See Engineer's Stake. STATIONS. Duty to passengers with regard to construction and mainte- nance of, 253. Liability for objects thrown from passing trains, 255. For careless handling of luggage, 256. For injuries due to projection of cars over platforms, 256. Liability to servants for constructions in dangerous prox- imity to line, 308. STATION GROUNDS. See Stations. STATUTES. See Sunday, Death. Non-performance of duty imposed by, as negligence, 40. Disobedience to, as contributory negligence, 64. Affecting liability of railway to servants, 381. The Penna. Act of 1868, 225. Vesting a right of action for death, 402. Such, have no extra-territorial effect, but are enforced in other jurisdictions by comity, 409. Joinder of common law and statutory claims, 395. Statutory limitations of damages, 494. STEAM. Injuries to passers on highway from escape of, 152, 154. STEPS. Injuries on station, 258. Injuries on car, 266, 271. No presumption of negligence in such cases, 443. STOKERS. See Firemen. STOP, LOOK, AND LISTEN. The duty to, on the part of a person approaching a grade crossing, 170. STORMS. See Act of God, Cyclone. ixdex. 539 STRANGERS. Non-liability of railways for injuries caused solely by acts of, 38. Contributory negligence of, no bar to plaintiff's recovery, 39, 95. Presence of, in engine cab when negligence on the part of the railway, 167. STRAPS IN STREET-CARS. Liability of railway for injuries incurred by not holding, 64. STREETS. See Highways. STREET CARS. Different conditions of travel ou, from that on steam cars, 290. Not necessarily contributory negligence in passenger to ride or stand on platform of, 57, 291. SUBORNATION. See Perjury. SUICIDE. Railway not liable for death by, following accident, 29. SUITS. See Action. SUNDAY LAWS. Disobedience to, as contributory negligence, Go. SUPERIOR SERVANT. See Foreman. SURGICAL TREATMENT. Duty of person injured to excrei.-e rare in, sitter injury, •!*(). SWITCHES. Duty of the railway to passengers, with regard l<>, Li 10. Duty of the railway to servants, with regard to, 306. Non-liability of railway for act of stranger in moving switches, 38. SWITCH-TENDERS. As fellow-servants, 366. TELEGRAPH POLES. Liability of railway to servant.-- for location of, in & proximity to line, 308. 540 INDEX. THIRD PARTIES. See Strangers. Liability of railways for means of transportation under tha immediate control of, 240, 136. TIES. Duty of the railway to passengers, with regard to, 240. TOOLS. Duty of railway to servants, with regard to, 307. TORPEDO. Railway not liable to passenger for explosion of, by act of a stranger, 38. Injury to trespasser by explosion of, 189. TORT-FEASORS. Joint liability of, 413. TORTS. Damages in actions for, 468. TRACK. Duty of the railway to its passengers with regard to, 240. Duty of the railway to its servants, with regard to, 305,302. TRAIN HANDS. Risks of injury impliedly undertaken by, 344. As fellow-servants, 366, 369. Contributory negligence of, 375. TRAPS. Liability of railways for, adjoining highways, 148. For, within railway premises, 176, 183. TRESTLES. See Bridges. TRESPASS. Effect of notice not to, 180 Liability of railway for servants, 00. "When the action of, lies, 386. TRESPASSER. Liability of the railway to, for the maintenance of unauthor- ized means of injury, 182. Injuries to, at turn-tables, 184. Upon cars, 188. On the line, 190. INDEX. 541 TRESPASSER— Continued. Train hands entitled to assume that trespasser will get out of the way of the train, 192. Higher measure of duty with regard to trespasser of known or obvious incapacity, 193. No absolute duty to stop train, if infant be seen on line, 19o. Sleeping, etc., on line, 196. Railway's failure to fence as affecting its liability to, 198. TUNNELS. Labourers impliedly undertake risks incident to working in, 349. TURN-TABLES. Injuries caused to trespassers by, 184. Duty of railway to servants with regard to, 305. TURNOUTS. See Sidings. ULTRA VIRES. As a defence in actions for negligence, 43. VENDORS OF REFRESHMENTS, NEWSPAPERS, ETC. Liability of the railway to, 216. VICE-PRINCIPALS. Liability of railways to servants for negligence of, 320. Who are, 322, 323. Foremen are not, 323. Conductors are not, 324. Engine-drivers are not, 327. Executive officers are, 323. VOLUNTEERS. Non-liability of railway f. >r acts of, 103. Liability of railway to, 370. WATCHMEN. As fellow-servants, 368. WATER TANKS. Liability of railway to servants for location of, in dan proximity to line, 308. WELL-DIGGERS. Risks of injury impliedly undertaken by, 3 19. 542 INDEX. WHISTLE. Duty of engine-driver to use, in approaching grade cross- ing, 102. Liability of railway for injuries resulting from fright of horses caused by excessive use of, 151, 105. WIFE. See Husband and Wife. WINDOWS. Injuries in cases of arms or heads projected from, 284. No presumption of negligence in such cases, 442. YARD HANDS. As fellow-servants, 368. YARD-MASTERS. As iellow-servants, 368. LAW LIBRARY OF LOS ANGELES COUNTY LGS -— -* UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 786 498 6